The URL can be used to link to this page

.01 MCA-2006-02 Heritage Tree Ordinance CITY OF CUPERTINO 10300 Torre Avenue, Cupertino, California 95014 DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM Application: Applicant: Property Owner: Property Location: MCA-2006-02 City of Cupertino Various Citywide Agenda Date: October 24, 2006 Summary: Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) RECOMMENDATION Staff recommends that the Planning Commission discuss and provide direction on Chapter 14.18 (Heritage and Specimen Trees) of the Cupertino Municipal Code. BACKGROUND On September 26, 2006, the Planning Commission opened the public hearing and initiated discussion on possible amendments to the City's tree protection ordinance. During the meeting, Barrie Coate, the City Arborist, presented his recommendations for adding trees to the ordinance's current list of protected trees and described his rationale for recommending these trees. The Commission also heard from several members of the public who expressed the following concerns: Excessive fees for tree removal permits · Impacts of trees canopying over onto neighboring properties Fees charged for approval to remove dead trees · Lack of guidance for property owners with designated heritage trees · Adding too many trees to the protected tree list Excessive tree replacement requirements for tree removals Vague determinations for" dangerous" and" dead" trees Confusion over what are protected trees versus non-protected trees · Whether a tree fund will be established Maintaining dead trees for habitat purposes where safe Ensuring protection of trees during construction DISCUSSION Upon hearing public testimony and reviewing the model tree ordinance, the Planning Commission provided several comments on the following discussion items, which include staff's responses: I-I" MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 2 Cost . Lower cost of tree removal permits; do . not penalize owners for following the law. Where no permit fees are required, · find out why those cities charge no fees and how they recover their costs. Comment noted. Await Commission's direction. Other cities' fees: · Campbell: $110 · Los Gatos: $120/ tree and $60/ each additional tree with $1,500 arborist deposit Saratoga: $75 Morgan Hill: $56 · Los Altos: $50 if independent of development application; otherwise, tree removal is reviewed as part of the development application. · San Jose: $130-280 for dead tree removals; $243-$1,095 for live tree removals Palo Alto: $158 + other fees (noticing, microfilming, permit automation, etc.) Mountain View charges no fees for tree removal permits if tree removal is not part of a development project and the permit is reviewed by their community services forestry division; otherwise, if part of a development project, the planning department reviews the tree removal permit application and there is a $476 fee. The community services forestry division reviews these permits. Sunnyvale charges no fees for tree removal permits because they consider this a service to its citizens. Therefore, there is no cost recovery. It is estimated that it takes approximately 4-5 hours of staff time to process each tree removal permit. Additionally, tree removal permits are reviewed and approved by an on-staff certified arborist that reduces the cost of a consulting arborist. l-~ MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 3 . Provide a breakdown of the City's tree · removal application fees. Cupertino's tree removal application fee is based upon staff time to work on applications, since the City Council approved a cost -recovery fee schedule in 2004. Staff will provide the fee anal sis date at the meetin . Penalties How much of a penalty is too · excessive (from City Attorney's stand oint Comment noted. Await Commission's direction. City Attorney states that the City has no mechanism to impose fines at this time, but staff is currently researching mechanisms used by other cities to im ose fines. City Attorney will also amount of fines imposed cities. research by other Penalize property owners for illegal · tree removals; consider high penalty fees. "Dan erous" and "Dead" Trees Provide a clear definition "dangerous" and" dead" trees. of. Staff recommends the following definitions: . . "Dead" tree to mean any tree with no living tissue. · "Dangerous" tree to meanany tree that is an imminent hazard or threat to the safety of persons or property requiring immediate action in case of an emergency. · To provide an efficient and cost-free process for removal' of trees that are clearly dead or dangerous, staff recommends: /-3 MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 4 Protected Trees · When the tree is indisputably dead or dangerous, have the Community Development Director approve the tree removal (no fee or deposit). In case of an emergency situation where the tree must be removed immediately before the Community Development Director, or sheriff or fire department can make the determination, a subsequent or retroactive tree removal application shall be filed within 5 working days, as is required in the existing ordinance. When state of tree is disputable, require an arborist report (min $1,000 deposit) that may result in: · Director's Tree Removal ($819) application fee if arborist finds tree to be dead or diseased. Planning Commission Tree Removal ($2,536) application fee and noticing deposit ($400) if arborist does not find tree to be dead or diseased. Add indigenous trees that define the . skyline. . Comment noted. Await Commission's direction. Staff concurs with the City Arborist's recommendation to add coastal redwoods and incense cedars 'since they are indigenous trees, define the skyline and are long-lived. Although it is not indigenous, the City Arborist also concurred with the City Naturalist to add the western sycamore tree as a protected tree as it is valuable in defining the skyline. . l-~ MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 5 . Add California Pepper trees . Comment noted. Await Commission's direction. City Arborist noted at the last meeting that California Pepper trees are not indigenous and can become a nuisance. In some Southern California cities, they are prohibited due to their invasiveness. The existing list of protected trees in the ordinance were recommended by the City Arborist based on criteria that these trees define the skyline, are long- lived and in some cases, are indigenous to the area. Staff believes it would be difficult to provide specific criteria for adding trees to the protected tree list since each tree is listed for different reasons. If the Commission would like to add other trees to the protected tree list, the tree(s) could be reviewed on a case-by- case basis. The ordinance already addresses non- protected trees in the Exemption section of the ordinance (Section 14.18.140 . A "heritage" tree is listed as a type of "protected" tree. A definition for "heritage" tree already exists in Section 14.18.020(D): "Heritage tree means any tree or grove of trees which, because of factors including, but not limited to, its historic value, unique quality, girth, height or species, has been found by the Planning Commission to have a special significance to the Community." . Provide criteria for adding trees to the . protected tree list. List what is protected and what is not . protected. Clarify difference between "heritage" · and "protected" tree . . . (-5 MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 6 . Clarify if City trees and/ or street trees · are covered under this ordinance. Protected Tree Size ~r~91mi!fi · Discuss criteria for defining tree size. . The existing "Purpose" section of the ordinance (Section 14.18.010) specifies that the purpose of the ordinance is to preserve "specimen and heritage" (in other words, protected) trees on public as well as private property. Therefore, there is no distinction between protected trees on public or private property, and the tree removal permit process for. trees on public property is the same as for trees on private property subject to the ordinance. The ordinance also excludes street trees and "exempt" trees, whether on public or private property. Street trees are covered under a separate ordinance under Chapter 14.12 and are not subject to this ordinance. Staff also recommends clarifying Section 14.18.035 to state that protected trees on public property are subject to tree protection requirements, except for street trees and" exem t" trees. . . · At the last meeting, the City Arborist stated that dbh (diameter at breast height, or 4 1/2 ft above grade) is the standard used around the world to calculate a tree's value, since tree diameter is easily accessible. City Arborist states that canopy size can be used to determine the tree's value, but it is not as easily accessible as trunk diameter to measure. l-~ MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 7 . Need to be cautious of requirements · leading to over planting of properties. . Need to be cautious of using canopy · coverage to determine tree replacement requirements. Re lacement Plan . Clarify where recommendations for replacement trees come from. Staff has added Section 14.18.180(A)(3) that would allow approval of a tree removal permit to thin out trees due to over-planting or over-crowding on ro erties. As indicated by the City Arborist, determining canopy size is not as easily accessible as trunk diameter. Staff also cautions that consideration be given so that over-planting on properties does not occur if canopy coverage is used to determine tree re lacements. \<Sf~f~R~~ihiQn Section 14.18.185 IS taken from standards used in the Town of Los Gatos' Tree Protection Ordinance. This section was included in the draft ordinance to stimulate discussion on tree replacement requirements. · Staff is not recommending use of canopy size to determine the tree replacement requirements, given the City Arborist's comments on the difficulty of measuring canopy size. Instead, staff recommends that the dbh of a removed tree be used to determine the replacement ratio, as recommended by the City Arborist. · Staff also recommends that language be added to the ordinance allowing the Director of Community Development to require tree replacements for removal of exempt dead or dangerous trees in case of emer enc . Staff has made no changes to the draft model ordinance at this time and will await the Planning Commission's direction to incorporate changes. 1,..-7 MCA-2006-02 - Heritage and Specimen Trees, Ch. 14.18 October 24, 2006 Page 8 Tree Management Plan Staff recommends that a section be added to the draft model ordinance that will allow a property owner the option of recording a tree management plan on his/her property in conjunction with the approval of a landscape plan on the property. The tree management plan would outline criteria for thinning out/ removing trees in the future by laying out the eventual growth of trees on the property and specifying a time frame in which trees may require thinning out/ removal to prevent overcrowding of trees on a property. Prepared by: Approved by: Aki Honda, Senior Planner . p.. Steve Piasecki, Director of Community Development d-/i1/.J2 t!I~ci_' r/ WL--r Attachments Exhibit A - Minutes from the September 26, 2006 Planning Commission meeting Exhibit B -- Planning Commission report of September 26, 2006, including the draft model ordinance G:\P1anning\PDREPORT\pcMCAreports\ Tree Ordinance, Oct. 26 PC Mtg.doc I~S Cupertino Planning Commission 23 September 26, 2006 Motion by Com. Chien, second by Com. Wong, to deny Application MCA-2006-03. (Vote: 3-1-1; Com. Wong, Chair Miller, and Com. Chien Yes; Vice Chair Giefer No; Com. Saadati Absent) Motion: otion by Com. Wong, second by Co hien, to present a Minute Order to City Co cil to clarify the lease between e City of Cupertino and the Blue Pheasant Resta ant regarding 7b, the Us of the Property, stating that the use of the property all be consistent wit the rules and regulations of the City's PR zoning district whi includes the ni tly closing time of 11 p.m." City Council to clarify if it means tha he premi s shut down at 11 p.m. and everybody has to exit the building, or is the ano er interpretation. Com. Chien: . Said he wanted to limit th what goes on inside the building, not the parking lot. Com. Wong: . Said he wanted int something to it. tes and was open to the suggestion of adding . Saadati absent. 5. MCA-2006-02 City of Cupertino Citywide location Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) Tentative City Council date: Unscheduled. AId Honda, Senior Planner, presented the staff report: . Reviewed the background of the Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) as outlined in the staff report. . On August 15, 2006 the City Council conducted a preliminary study session on the city's Heritage and Specimen Trees Ordinance and provided comments to the Planning Commission to address additional tree protection measures for possible incorporation into the ordinance. . City Council provided comments to the Planning Commission on topics including tree protection, approval authority, penalties of unlawful tree removal, noticing, and solar panels which are summarized in the staff report. . She reviewed the public comments received including a request to allow tree removal where trees block solar energy panels, and to request that PG&E reduce pruning of trees and use special insulated wires to allow trees to be closer to the wires; and to support tree protection in the city during construction. It was expressed that the tree removal fees were excessive. It was also requested to consider adding redwood trees, sycamores and black cottonwoods to the protected tree list. . The recommendations for additional protected trees were reviewed and are included in the staff report, Page 5-2 and 5-3. . She reviewed the penalties imposed by other cities for trees removed without a tree removal permit approval; and the revisions to the draft model ordinance. . Discussion items for the Planning Commission to consider include adding or removing trees from the protected tree list; determining a definition for what is considered unsafe or a dead tree; decide the approval authority for a tree removal permit; and retroactive tree removal permits, whether they be done at staff level or at the Planning Commission level; and decide r-q Cupertino Planning Conunission 24 September 26, 2006 what type of penalties to be imposed for unlawful tree removals; and what type of tree replacement requirements to impose if added as a penalty requirement; consider placing noticing on trees during application or appeals processes; and to consider allowing tree removal of protected trees where trees impact a property due to overcrowding and over-planning. Com. Chien: . Asked the arborist his opinion on using the width of the canopy, as proposed in the ordinance, to determine things such as value, rather than using the width of the trunk. Barry Coates, City arborist: . The trunk diameter at 4-1/2 feet above grade is the standard used by arborists all over the world, and since it is a standard used everywhere and the trade understands it, and it is the first item on which a tree's value is calculated, that should always be included. However, that doesn't mean that you couldn't add the canopy dimension as part of your evaluation; the trunk diameter is merely an easily accessible definition of tree mass. It is not simple to measure the canopy mass, but it is simple to get to the trunk. . The trunk diameter measurement is designed to evaluate the size of the tree. Adding the canopy mass to it as part of the evaluation is a very valid idea, because the canopy represents the tree's value to the city and the neighborhood more than the trunk diameter does. . Said the biggest deterrent for cities to use to prevent people from cutting trees is regulations and fines. If somebody cuts down a tree and the newspaper publicizes what is done about it, it is an effective deterrent for illegal tree cutting. . Regarding the criteria used for adding trees to the list, he said that the arborist evaluates the size, its health, its structural condition, whether it is damaging pavement or a structure and all of those go into an equation yielding an opinion. For example a Coast Live Oak that is a beautiful specimen but is structurally a disaster, they may recommend its removal even though it is a healthy specimen. That is happening in Saratoga now and a lot of controversy about it, but if the tree is hazardous, whether it is healthy, is irrelevant. There is a definition of the different native oak species in the document; previously just native oaks were protected. . Said that he felt educating the public on the process was important. He suggested a brochure, or a door hanger about cutting and removing trees that could be distributed when someone purchases a home or submits an application to reconstruct a home in Cupertino. Com. Wong: . Discussed the fee schedule and said the high cost may be a deterrent to applying for a permit to cut the tree. He questioned if having a lower fee would encourage them to follow the process. Barry Coates: . Said that in Saratoga, many times people will cut the tree down and pay the fine. The fines are not large enough to be relative to the value of the home or their opinion of the value of the tree being gone are not sufficient to prevent them from removing trees. He said he was not sure if having a lower fee would encourage the people to apply for a permit to remove the tree. . Provided a history of his background. Vice Chair Giefer: . Said she liked native trees because they thrive in the area, use less water, and produce less pollen. She said, she tries to rectify trees that have come before us both here and planning as well as the DRC where they do landscape plan reviews; and is attempting to balance between native species and/or problematic species in Cupertino. She asked for the arborist's opinion on different species. /-/D Cupertino Planning Commission 25 September 26, 2006 Barry Coates responded to Vice Chair Giefer's questions regarding a variety of trees: . In response to Vice Chair Giefer's question about Washitonia Fan Palm trees, he said that both Mexican and California fan palms come from very specific micro sites, they are always in a desert and in an area and in a micro site that is wet. They are not a drought tolerant plant; they always only appear in those locations; they would never appear in clay soil; or in an area that is dry. You can say that about many plants, but if asking if they are appropriate here, he said you would never see a palm growing naturally in this location. . Deodora Cedar is native to the Himalayas. However, Deodora Cedar is very drought tolerant, is extremely long life, and very useful here. . Most conifers will produce pollen which are the primary sources of people's allergens. People see yellow acacia flowers and assume they are the cause of their allergens. A government research project in Australia demonstrated that the acacias were not usually the cause of most people's allergens; pine trees, cedars, cypress all are dominant. . Ash trees are problems; they are Evergreen Ash from Mexico and it is a huge tree, very brittle and very difficult tree to prune. It is a nightmare for an arborist. They are fast and very destructive of pavement. Some Ash trees are very useful but that one is a real problem. . California Pepper is from Peru; in Australia it is called Australian Pepper; in South Africa it is called the South African Pepper. It is not from California. Whether or not it is invasive, depends on the climate. Near a water course, they do tend to reseed and they can become a nuisance. Some places in Southern California, weather prohibitive; but they aren't a problem in that respect. . Madrones are a California native, but only in very specific areas. It is all through the Santa Cruz mountains, but the largest Madrone in the world is in Oregon, not in California. They are dying in the Santa Cruz mountains from a disease. It is not a tree you would plant and expect to grow in your garden. . Relative to affixing something to the tree to designate that it is a protected tree, he said in doing tree surveys, a one-half inch nail is used because it goes only into the bark, not into the vascular tissue. The tree grows around that and actually pushes it off eventually. What is done in most botanical gardens is to use a longer nail with a spring on it, with the label on the outside of the spring; the head of the nail holds the label on and then as the tree grows in diameter, it compresses the spring and the label lasts for a much longer time, from 5 to 20 years depending on the species of the tree. . He explained the reasons for adding the Coast Redwood and Incense Cedar trees to the list, because they are large native California trees, relative low maintenance and long life. The Incense Cedar is also a native tree from the Sierras, and is a large, useful tree. Chair Miller: . Noted there was a recommendation from the city naturalist to include the Western Sycamore, the California Bay Laurel, the Black Cottonwood, the White Alder and the Box Elder Acer. He asked the arborist for his opinion on adding those trees. Barry Coates: . He said he did not agree with the latter three, and noted they would be found only naturally growing in streambed areas. . He said that it is not very often that you encounter that type of situation when you have to make a decision about preservation of trees, but they are all short lived; if you are going to preserve trees, hat is normally done is to chose trees that are long lived so that the designation you have given, helps contribute to a longer life city forest. The California Bay is a separate problem because where you have California Bay going through the canopies of Coast Live Oaks or other oaks, the Bay will eventually ruin the oak trees; it outgrows them and as it grows above their canopy and begins killing the oak. Further, California Bay is the dominant supply of spores that I-Ii Cupertino Planning Commission 26 September 26, 2006 cause'sudden oak death; so there are cases where Bay should be removed for the benefit of the surrounding Oaks. · The last recommendation is the Western Sycamore, which is one of the most valuable deciduous native trees, and wherever there is a stream area or wet area, it will likely be the most important tree you have. It should be preserved; however, it is so fast growing it is not a tree normally preserved at a small diameter; it would almost be equivalent to a redwood in the growth rate and you might wish to preserve that at a larger size, because small ones are very young. Chair Miller: . Stated that the arborist recommended more stringent mlmmum tree size requirements of between 6 and 8 inches; yet on the Coast Redwood and the Incense Cedar the proposal was for 12 to 15 inches. He asked for an explanation for reducing the size of the trees. . In terms of criteria for putting a tree into this protected category; is it native or indigenous to the area. Barry Coates: . Explained that it was a matter of how fast that species grows. One tree at 6 inches diameter could be 50 years old; where a Coast Redwood of 6 inches diameter might be a year or two; a 12 inch Coast Redwood might be 6 to 10 years old. The attempt is to try to protect trees of approximately the same age as each other. Once they reach some stage of maturity, it could be protecting them. . If it is important to your skyline, if as you look down the street you see a few of these which rise above the dominant trees, they deserve to be protected because that is what gives you the skyline, and ifthere are native trees that are reasonably long lived, they probably should be protected because they are native trees. He said he was quoting the logic behind those decisions by most cities. Chair Miller opened the public hearing. Carol Bunn, resident: . Said there was a Black Walnut tree on her property that was planted inadvertently and its canopy is above her house. She asked if would be considered protected because of the canopy, or because it is a good tree. It is causing some problems for her neighbor. . She asked if the cost of applying for a permit goes into a fund that people in need could draw from to get their permits. Ms. Wordell: . Said the Black Walnut tree is not protected, the only way it would be protected is if in the. course of a subdivision or use permit, that particular tree was protected. . She said it was wise to call the Planning Department to have them check to see if a specific tree is protected even though it is not on the list of protected trees. . Regarding the fees, the fees go into the general fund and they are not a resource. Donald Anderson: . No longer present at the meeting. Syd Jacobson, Property Manager of St. Jude Church: . Said he was opposed to the process for tree removal. . Questioned why there were so many different classifications of trees. . Said there was a 90 year old Deodora Cedar tree on the property that died. They were informed they had to pay a $3,000 fee, which was reduced. He said he opposed the fee charged. He said I-I:? Cupertino Planning Commission 27 September 26, 2006 they also had a heritage tree on their property; a Coulter Pine that leans over at 18 degrees and drops 5 pounds of pine cones. The arborist informed them that they would soon have to cut it down. The arborist also suggested they rope off the parking lot in places where it is becoming a danger. . He said that the church has planted in excess of 100 trees on the property. . There should be some specific guidelines when the tree is dangerous and removed, other than a person's opinion. . Said he was not previously aware that the city had a staff arborist. Ms. Wordell: . Clarified that the city arborist is called upon when someone applies to remove a tree or if somebody is applying for a development and a tree assessment is needed. The city arborist is not available for people to come out and look at their trees or to ask questions; the arborist's services are related to a development application. Robert Levy, Wilkinson Avenue: . Reported that recently on a Friday afternoon about 4:45 p.m. the city tree in front of his home dropped a large branch leaving part of it hanging and the remainder covering the parking strip on the sidewalk. He said he was unable to contact any staff in the city and when he called the Sheriffs non-emergency number, he was told that he was responsible for clearing the sidewalk and the parking strip. On Monday he was able to reach a street tree maintenance group. Because the Sheriffs Department informed him that he was responsible for the tree, he cut the branch and put it in the street for the city to pick up on Monday. . He said he had 8 trees on his property and went out and purchased a new blade for his chain saw. He said that he did not know which of the trees on his property will be on the protected list with the upcoming changes, and he did not want trees that he planted to grow and threaten the safety of his family and home. Louise Levy, Wilkinson Avenue: . Said she did not see anything in the proposed ordinance that states which trees required a permit. . Said that the $3,000 fee for an application for a tree removal permit was exorbitant, and resembled a fine for having cut down a tree rather than an application fee. Gail Bower, resident: . Said she understood it would apply to the city as well as residents; hence any city trees would be a part of this program. . She requested that where feasible and safe, that dead trees be kept for habitat purposes. . She noted that in the proposed 2006-07 budget, the tree maintenance for the city has been deferred for about 4 years, and recommended including maintenance by the city so that they are not only being protected, but maintained so they don't have to be removed. . Said she supported adding more trees to the protected tree list as it would add variety. She said she was in favor of keeping all the currently proposed trees on the list also. . The model ordinance No. 10 states that the Community Development Director would be able to deem a tree dead and allow removal, which appears to be a broad approval given to one person. She suggested that an arborist's opinion be required in addition to the Director. . Said she requested by email a heritage tree list with a map of their locations. Ms. Honda stated that the list was available form the Planning Department. 1-/3 Cupertino Planning Commission 28 September 26, 2006 Julia Tieu, Cupertino Road: . Referring to Mr. Coates' comment about looking at the viewscape of the city in terms of which trees to keep, one item is to look at the density of a property's plantings. She pointed out that Coast Live Oaks are very large trees and not too many can be planted on a property in the city. . In addition to looking at the species and the size, consideration should be given to how many are on the property in deciding which to remove. James Welsh, Commercial Tree Care, San Jose: . Said the high cost of apermit is a deterrent for honest people to come in and apply for a permit for tree removal. . Said that San Jose, Sunnyvale and Mountain View did not have fees for tree removal and other cities had low fees. . He said there are dangerous trees that may fall and cause deaths of people. . He said there needs to be consistency in the size of the trees and notification to neighbors needs to be clarified and streamlined. Eucalyptus trees are a major problem; some cities will assist with the permits just to get them removed. . Relative to using the size of the tree to determine if it should be removed, he said the size of the tree is determined more on the amount of water they need. . Questioned the reason for a staff arborist. He said he had four certified arborists on his staff and he felt that any certified arborist should be able to write an arborist report. Jennifer Griffin, Rancho Rinconada resident: . Said one of the reasons Rancho Rinconada annexed to the city was for the protection of their street trees, which are valuable to the neighborhood. . Said she wanted to ensure that street trees are protected by the city; they are under a special category and it may need to be explained to residents, exactly what a street tree is. . Cupertino has always loved its trees and as a prominent city in the Bay Area, Cupertino should continue to do everything possible to protect its urban and suburban forests. Trees provide valuable canopy cover and make Cupertino a comfortable city for walking. Mature tree cover allows city residents to feel they are in the country during their busy lives. . She commended the city for building fences around trees to protect them during construction, and said the city has done a good job of replanting their street trees and was assured that it will continue. . She said that posting notices on the trees that are going to be removed was important. . She asked if there was a designation that any tree over a certain size is protected? Jan Stoeckenius, Cupertino Road: . Said that he and his wife sent an email with comments. . Said they supported the concept of protecting the trees; . He said they initially were concerned with the move down to six inches on Coast Live Oak, since they had a large number of Coast Live Oak trees on their property, and they grow to six inches quickly. (Chair Miller clarified that Coast Live Oak was 8 inches) . Coast Live Oak trees grow quickly and he was concerned that there would be a large number under the ordinance when they are not difficult to replace. Chair Miller closed the public hearing. Chair Miller and Com. Wong summarized the issues: . Cost - the issue of goal congruence; which is not to discourage people from filing an application, but discourage cutting the trees down and coming in after the fact. Perhaps the fee /-/4 Cupertino Planning Commission 29 September 26, 2006 . should be lowered for the application, and increase the fee if they cut the tree down without a permit. . How to define when a tree is dangerous and needs to be removed. . How to define what size of tree; heard several different approaches. . List of trees to be added. (They should be indigenous and in some way they helped define the skyline, but the others didn't make sense for a number of reasons) . What is criteria for adding trees to the Heritage list (why 4 inches vs. 6 inches?) . Cities of Mountain View, Sunnyvale, and San Jose have no costs for permits for tree application (What is their cost recovery) . What is the rationale for the different fees? What is the breakdown of fees. . How was the replacement plan criteria determined. . What is the cutoff point for fines; when does it become excessive? . Any other fees involved, such as fees for arborist examining the tree? Com. Chien: . Said he felt it was unreasonable that the church had to pay a $3,000 application fee to remove the trees. . He commended the fine work done and said more is to be done, with having it in writing so that the residents have a better understanding. Vice Chair Giefer: . Asked for clarification of "Heritage" tree vs. "Protected" tree Ms. Murray: . Clarified that the palm trees on Palm Avenue were heritage trees, although palm trees are not a protected species. . The heritage trees are specific trees that have some historical value to the city and does not relate to its particular species. . She said that a specific oak tree could be a heritage tree if it is designated. Vice Chair Giefer: . Said she would like to see what is not included, because the landscape trees were discussed and she was not certain she agreed with the list. The tree list needs to be expanded, with the California Pepper tree added, as well as other trees. The audience had questions about street trees also. It needs to be stated what is covered and what is not. . Said one of her goals for the tree policy is to have an incentive for good behavior; and penalize people for not being out of compliance. She said that a tree removal permit fee of $10 and a retroactive tree removal permit $9,000 may be appropriate. Other cities are imposing fines and court cost recovery and she said she agreed with Mr. Coates that the way to get people to stand up and pay attention is if people get caught and the city imposes fines on them. She said that providing education and adjusting the fees is what it will take for people to stop hiring itinerant tree cutters because they don't want to pay the fee and they can pay $200 to cut the tree down. . She said there was more work to be accomplished. She expressed concern about the canopy equation because of crowding. Mr. Coates: . Said that the Big Leaf Maple should be included on the list since it is a useful tree, long lived and is indigenous to the immediate area. Com. Wong: . Said he wanted to know the criteria used for adding trees to the heritage and protected list; and l-I5 Cupertino Planning Commission 30 September 26, 2006 was concerned that if too many are added to the list, it may become cumbersome to enforce. He said they should be careful when adding anything to the list. Motion: Motion by Com. Wong, second by Vice Chair Giefer, to continue Application MCA-2006-02 to the October 24, 2006 Planning Commission meeting. (Vote: 4-0-0; Com. Saadati absent) OLD BUSINESS: \. \ NEW BUSINESS: None None , REPORT ~kHE PLANNING COMMISSION: Environmental R iew Committee: . Vice Chair Gie reported that Vallco Sh ping Center requested approval for the 4th floor garage exceeding 3:{eet; the ERC felt it as a mitigated impact and it was agendized for the Planning CommiSSiOn\ Housine Commission: . Meeting was cancelled due t Ma or's Monthl . No report. Economic Develo ment Co ttee: . Com. Chien reported tha the North Vall study area was discussed. . Interviews are being c ducted with busin ses leaving Cupertino to talk about conditions they experienced while do. g business in Cuperti . . Discussed upcomi projects. . Interviews have b en taking place for the Redeve . DIRECTOR OF COMMUNITY D report. ADJO The meeting was adjourned to he October 10, 2006 Planning Commission meeting at 6:45 p.m. Elizabeth A. Ellis, Recording Secretary '-1ft, CITY OF CUPERTINO 10300 Torre Avenue, Cupertino, California 95014 DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM Application: Applicant: Property Owner: Property Location: MCA-2006-02 City of Cupertino Various Citywide Agenda Date: September 26; 2006 Summary: Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) RECOMMENDATION Staff recommends that the Planning Commission discuss and provide direction on Chapter 14.18 (Heritage and Specimen Trees) of the Cupertino Municipal Code and continue this item to the October 24, 2006 meeting. The Planning Commission is requested to provide specific suggestions on possible amendments to include in the ordinance. BACKGROUND On August 15, 2006, the City Council conducted a preliminary study session on the City's Heritage and Specimen Trees Ordinance and provided comments to the Planning Commission to address additional tree protection measures for possible incorporation into the ordinance. The Council reviewed a model tree protection ordinance that was drafted to stimulate discussion of possible amendments to the ordinance. DISCUSSION The City Council provided the following comments to the Planning Commission based on the following topics: Tree Protection 1. Confer with the City Arborist and City Naturalist for recommendations of other trees to be included within the protected tree list. 2. Review the current protected tree list to decide if existing trees on the list should be retained. 3. Exempt unsafe and dead trees from the ordinance, but provide direction on how to determine if a tree is unsafe or dead (e.g., consider involving the City Arborist to make the determination). 4. Address circumstances that may lead to the demise of protected trees (e.g., whether a sick tree is considered an unsafe tree and whether neglect by a property owner may lead to the demise of the tree). (-;1 MCA-2006-02 - Heritage a. Jpecimen Trees, Ch. 14.18 September 26, 2006 Page 2 Approval Authority 1. Allow tree removal permit approvals at staff level, unless a retroactive tree removal permit is requested. 2. Have Planning Commission review and determine retroactive tree removal permit applications.' Penalties 1. Require more stringent penalties for tree removals without a permit. 2. Consider tree replacement and fines for removals without a permit. 3. Compare penalties of other surrounding cities. 4. Consider increasing penalties for subsequent offenses. 5. Allow the City Council to review and determine retroactive tree removal permit applications with the ability to place additional conditions for the illegal tree removal. 6. Allow the City Council to modify the penalty on an appeal. 7. Hold all pending applications on a property until a retroactive tree removal permit is obtained for illegal tree removals. 8. Consider the location, size and replacement time frames when considering replacement trees. Noticing 1. Consider maintaining a 300-foot noticing for tree removal permit applications. 2. Consider placing notices on trees for tree removal permit applications. Solar Panels 1. Request that no amendments be made on this issue. Other Council comments include recommendations to consider whether the ordinance should provide tree protection measures during construction and the possibility of transplanting trees from mature landscaped areas to tree deficient areas in the City. Staff has received input from both the City Arborist and City Naturalist regarding their recommendations for additional trees to be considered for the protected tree list. Recommendations for Additional Protected Trees The City Arborist and City Naturalist recommend that the City consider adding the following trees on the protected tree list: Coast Redwood Incense Cedar Western S camore California Ba Laurel ni'(gjJt~;~:);~ljfJJ3R1f'4):~Zz'Ji:;,~!~;gQ~n~~~ii"";':~ae'Y;j)! ?,:~~~J?111m~t1~t.~:tift?i'",{!:, > 15 inches BC > 12 inches BC 4 inches or reater BB 10 inches or reater BB I-/<b MCA-2006-02 - Heritage a. 3pecimen Trees, Ch. 14.18 September 26, 2006 Page 3 S ecies Black Cottonwood White Alder Box Elder Acer Inches atDBH' 41/2 feetfrcnu natUral 10 inches or 10 inches or 10 inches or BB BB BB BC = Barrie Coate, City Arborist BB = Barbara Banfield, City Naturalist The City Arborist also provided more stringent minimum tree size requirements for the following Oak trees: Coast Live Oak Valle Oak Blue Oak Black Oak Can on Live Oak :JhCI1~S~~t,: E>~H: 4;.1!2~eet"ff6m).iaHitaF"" > 8 inches > 8 inches > 6 inches > 6 inches > 6 inches Penalties in Other Cities The City Council also asked the Planning Commission to review and compare penalties imposed by other surrounding cities for trees that have been removed without a tree removal permit approval. The following is a list of penalties imposed by the cities of Cupertino, Campbell, Los Gatos, Los Altos, Saratoga, Morgan Hill and P~A~. . Cupertino X Campbell Los Gatos X X X X Los Altos X Saratoga X Morgan Hill Palo Alto X X (Temp X moratorium f-Iq MCA-2006-02 - Heritage a jpecimen Trees, Ch. 14.18 September 26, 2006 Page 4 Cupertino Campbell Los Gatos Los Altos Saratoga Morgan Hill Palo Alto Civil Action for Unlawfully... . .. RemovedTrees ..' . . Notto exceed $5,000jviolation, unless replacement value is greater. Where town prevails in court, violator shall pay all costs for trial preparation & fees. Notto exceed $5,000 j violation, unlessteplacement value is greater. City Council may commence action or proceedings for abatement that may involve courts. Notto exceed $5,000jviolation, unless. replacement value is greater. Where City prevails in court, violator shall pay all costs for trial preparation & fees. .Tree Replacel11ent . Requirements;" ... i,"" "', I, 2x replacement ratio for single-family res. 4x replacement ratio for all other properties. Replacement tree(s) with equal aesthetic quality of unlawfully removed tree(s). Replacement tree for each tree removed. Replacement trees in accordance with City tree manual. Replacement ratio shall be greater for unlawfully removed trees. . Appraisal, yaluationft)r ,'. RemovedTree. . Required. . '. . Cash payment to tree fund, or combination of tree replacement & cash payment based on appraisal value of removed trees. Cash payment to tree fund or replacement tree(s), based on appraisal value of removed trees. Cash payment to tree fund, or combination of tree replacement & cash payment based on appraisal value of removed trees. Cash payment to tree fund, or combination of tree replacement & cash payment based on appraisal value of removed trees. Maintenance A.greements: . ...... Requiredfol'" Replacement/ . Trees . ... . . ";...:." i't!. " ; " ~, ',<',,""", Maintenance agreement for length of time as . determined by the Town. Maintenance bond may be required. Maintenance agreement for a minimum of 5 years. 1-.:20 MCA-2006-02 - Heritage a Jpecimen Trees, Ch. 14.18 September 26, 2006 Page 5 Public Comments At the August 15th City Council meeting, the Council heard from three members of the public. One person requested that consideration be given to remove trees when they block use of solar energy panels. Another person requested that PG&E use special insulated wires that would reduce the amount of pruning of trees. One member of the public recommended support for protection of trees, including during construction. The City also received two emails. One email requests that redwoods, sycamores and black cottonwood trees be considered for placement on the protected tree list. The other email expressed the opinion that tree removal fees are excessive. Model Ordinance As previously mentioned, the City Council reviewed a model ordinance that was drafted to stimulate discussion. The draft model ordinance includes the following revIsIOns: 1. The title of the ordinance has been amended to read "Protected Trees." 2. All references to "specimen" trees have been changed to "protected" trees for clearer identification. 3. Section 14.18.035 has been added to clearly list the protected trees. 4. Section 14.18.025 has been added to clearly state it is unlawful to remove, damage or kill any protected tree in the City. 5. Sections 14.18.150, 14.18.170 & 14.18.180 have been renamed and address the application approval authority, application requirements, and review and determination processes for tree removal permits. 6. Repetitive sections have been removed. 7. Section 14.18.175 has been added to address noticing requirements. 8. A definition for "Development application" has been added. 9. Section 14.18.070 addresses recordation requirements for "protected" trees. 10. Section 14.18.140 has been amended to allow the Community Development Director, or any member of the sheriff or fire department, to deem a protected tree unsafe and allow removal of the tree. This section also allows the Community Development Director to deem a tree dead and allow removal of the tree. 11. Section 14.18.185 has been added to address tree replacement requirements. 12. Expanded definition has been added for "Tree removal." 13. Findings have been added to Section 14.18.180(A)(3) that allow for the removal of trees where protected tree(s) are a detriment to the subject property due to overplanting or overcrowding of trees on a site and whose removal would not result in a density of tree coverage inconsistent with the neighborhood. This would essentially allow a thinning out of protected trees to allow the trees to better thrive and encourage appropriate canopy coverage on site. An example is the recent retroactive tree removal application for the removal of six coast redwood trees that were planted in small and narrow planter areas between 1....:2..1 MCA-2006-02 - Heritage a 3pecimen Trees, Ch. 14.18 September 26, 2006 Page 6 townhouse units at the Joseph Circle townhouse complex off of Vista Drive. In this particular case, the trees were overgrown and crowding into a planter area causing damage to the adjacent townhouse walls and fence. Also, overcrowding could affect adjacent properties where tree canopies may encroach onto neighboring properties, thereby affecting and possibly prohibiting a homeowner's use of his/her property to plant in a yard without sufficient sunlight. Prepared by: Approved by: Aki Honda, Senior Planner ~ Steve Piasecki, Director of Community Developmen~ Attachments Exhibit A - Draft Model Resolution Exhibit B -- Emails from residents Exhibit C -- City Council Minutes of August 15,2006 Exhibit D- Council Report of August 15, 2006, including all attachments G:\Planning\PDREPORT\pcMCAreports\ Tree Ordinance, Sept 26 PC Mtg.doc .1- 2:< MCA-2006-02 CITY OF CUPERTINO 10300 Torre Avenue, Cupertino, California 95014 MODEL RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING THAT THE CITY COUNCIL AMEND CHAPTER 14.18 OF THE CUPERTINO MUNICIPAL CODE RELATED TO PROTECTED TREES ----------------------------------------------------------- ----------------------------------------------------------- Recommendation of approval is based on Exhibit A. ----------------------------------------------------------- ----------------------------------------------------------- PASSED AND ADOPTED this 26th day August 2006 at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: ATTEST: APPROVED: Ciddy Wordell City Planner Marty Miller, Chairperson Planning Commission G:\Planning\PD REPORT\RES\2006\MCA-2006-02, Trees .doc 1~.23 14.18.130 Enforcing authority. 14.18.140 Exemptions. 14.18.150 Application and Approval Authority for Tree Removal permit. 14.18.160 Director to inspect. 14.18.170 Re-v-iew-B-HlApplication Requirements. 14.18.175 Noticing 14.18.180 Review and determination of application stafldafEls. 14.18.185 Tree Replacement. 14.18.190 Protection during conservation. 14.18.200 Protection plan before permit granted. 14.18.210 Applicant to guarantee protection. 14.18.220 Notice of action on permit-Appeal. 14.18.230 Penalty. 14.18.010 Purpose. In enacting this chapter, the City of Cupertino recognizes the substantial economic, environmental and aesthetic importance of its tree population. The City finds that the preservation of specimen protected and heritage trees on private and public property, and the protection of all trees during construction, is necessary for the best interests of the City and of the citizens and public thereof, in order to: 2 /-,25 A. Protect property values; B. Assure the continuance of quality development; C. Protect aesthetic and scenic beauty; D. Assist in the absorption of rain waters, thereby preventing erosion of top soil, protecting against flood hazards and the risk of landslides; E. Counteract air pollutants by protecting the known capacity of trees to produce pure oxygen from carbon dioxide; F. Maintain the climatic balance (e.g., provide shade); G. Help decrease potential damage from wind velocities; H. Preserve protected Protect specimen and heritage oak trees. For the above reasons, the City finds it is in the public interest, convenience and necessity to enact regulations controlling the care and removal of protected specimen ond hcritogc trees within the City in order to retain as many trees as possible, consistent with the individual rights to develop, maintain and enjoy private and public property to the fullest possible extent. Protected Specimeft and heritage trees are considered a valuable asset to the community. The protection of such trees in all zoning districts including residential zones is intended to preserve this valuable asset. (Ord. 1573, ~ 2, 1991; Ord. 1543, ~ 2,1991) 14.18.020 Definitions. Unless otherwise stated, the following definitions pertain to this chapter. A. "City" means the City of Cupertino situated in the County of Santa Clara, California. 3 I-~lo ~ --B:--"Developed residential" means any legal lot of record, zoned single-family, duplex, agricultural residential and residential hillside, with any structure (principal or accessory) constructed thereon. C. "Development application" means an application for land alteration or development, including but not limited to subdivision of property, rezoning, architectural and site approval, two-story residential permit, minor residential permit, planned unit development, variance, and use permit. DG. "Heritage tree" means any tree or grove of trees which, because of factors including, but not limited to, its historic value, unique quality, girth, height or species, has been found by the Planning Commission Architectural ond Site Approval Committee to have a special significance to the community. D. "Oak tree" sholl include 011 trees of ook genus, including, but not limited to, the Volley 001< (Quercus loboto) and California Live Oak (Quercus agrifolio). E. "Owner" shall include the legal owner of real property within the City, and any lessee of such owner. F. "Person" shall include an individual, a firm, an association, a corporation, a co-partnership, and the lessees, trustees, receivers, agents, servants and employees of any such person. G. "Private property" shall include all property not owned by the City or any other public agency. H. "Public property" includes all property owned by the City or any other public agency. I. "Protected Specimefl tree" means any class of tree specified in Section 14.18.035.ony of the follm.ving: 4 '~21 1. Mree-€le-ser-ffie4-en the tnble below: Measurement Sffigle Trunk: Multi Trunk ~ Diameter! Diameter! Species Gfa€ie Circumference Gffffi:lmference Native Trees: Oak trees ~ 10" (31") 20" (63") California 4--'t-f:2! 10" (31") 20" (63") Btlckeye Big Leaf Maple 4--4R! 12" (38") 25" (79") Nonnative Trees: Deodar Cednr 4--'t-f:2! 12" (38") 25" (79") Blue Atlas 4-4J.2! 12" (38") 25" (79") Cedar 2. A tree required to be protected as 0 port of a zoning, tentative mop, use permit, or privocy protection requirement in on R 1 zoning district. J. "Tree removal" means any of the following: (1) Complete removal, such as cutting to the ground or extraction, of a protected tree or (2) Severe pruning, which means the removal of more than one-fourth of the functioning leaf and stem area of a tree in any twelve-month period of a protected tree the destruction (in a twelve month period) of twenty five percent or more, as determined by the Community Development Director, of ony heAtage or specimen-tfee--by-€~ retarding, girdling or applying chemicals. (Ord. 1886, (part), 2001; Ord. 1835, (part), 1999; Ord. 1810, (part), 1999; Ord. 1715, (part), 1996; Ord. 1573, S 3, 1991; Ord. 1543, S 3,1991) 14.18.25 Actions Prohibited 5 I ~ .2'6 A. It is unlawful to remove or kill any protected tree; and B. It is unlawful to remove any protected tree in any zoning district without first obtaining a tree removal permit. 14.18.030 Retention Promoted. Heritage and Protected specimen trees are considered an asset to the community and the pride of ownership and retention of these species shall be promoted. The Director of Community Development shall conduct an annual review of the status of heritage trees and report the findings to the Planning Commission. (Ord. 1715, (part), 1996; Ord. 1543, ~ 4.1, 1991) 14.18.035 Protected Trees. Except as otherwise provided in Section 14.18.140, Exemptions, the following trees shall not be removed from private property without first obtaining a tree removal permit: A. Heritage trees in all zoning districts. B. All trees of the following species: Measurement Single-Trunk Multi-Trunk . From Natural Diameter/ Diameter/ Species Grade Circumference Circumference Native Trees: Oak trees 4-1/2' 10"(31") 20" (63") California 4-1/2' 10"(31") 20" (63") -. Buckeye 6 ,--aLl} Big Leaf Maple 4-1/2' 12" (38") 25" (79") I Nonnative Trees: Deodar Cedar 4-1/2' 12" (38") . 25" (79") Blue Atlas 4-1/2' 12" (38") 25" (79") - Cedar C. Any tree required to be planted or retained as part of an approved development application, building permit, tree removal permit or code enforcement action in all zoning districts. D. Approved privacy protection planting in R-1 zoning districts. 14.18.040 Designation. The Planning Commission, may, by resolution, designate a tree or grove of trees as a heritage tree(s). Prior to adoption of such a resolution, not less than ten days written notice shall be delivered to the owner. If the owner of the property protests the designation! an appeal can be initiated. (Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543,94.2,1991) 14.18.050 Heritage Tree List. A heritage tree list shall be created and amended by resolution. The list shall include the reason for designation, tree circumference, species name, common name, location and heritage tree number. (Ord. 1543,94.3,1991) 14.18.060 Plan of Protection. 7 1~3D A. The Planning 'Commission shall consider a plan of protection for protected trees developed by the Community Development Department or a City- retained certified arborist. The protection plan shall include information for correct pruning, maintenance and fertilization methods. B. It shall be the property owner(s) responsibility to protect the tree. --=R=7e ~!on sholl be provided for his/her use ot his/her discretion in-er-aer-to obtoin-t-lte retention ob:iection~ C. Privacy protection planting in R-1 zoning districts shall be maintained. Landscape planting maintenance includes irrigation, fertilization and pruning as necessary to yield a growth rate expected for a particular species. Where privacy protection planting dies it must be replaced within thirty days with the location, size and species described in Ordinance No. 1799 (privacy protection) and its appendix. The affected property owner, with privacy protection planting on his/her their O'vvn lot, is Ret required to maintain the required planting and shall be required to comply with Section 14.18.070. (Ord. 1810, (part), 1999; Ord. 1630, (part), 1993; Ord. 1543, ~~ 4.4,4.5, 1991) 14.18.070 Recordation. All protected Heritage and specimen trees required to be retained as part of a development application under Section 14.8 1.020 12 14.18.035, except for trees on public property, shall have retention information placed on the property deed via a conservation easement in favor of the City, private covenant, or other method as deemed appropriate 'by the Director. The recordation shall be completed by the property owner prior to final map or building permit issuance, or at a time as designated by the Director of Community Development when not associated with a final map or building permit issuance. at the time of use permit, ~ning, tentative ffia(3 or initiolffiew-6ttH€lffig permit issuance. (Ord. 1573, ~ 4.6, 1991; Ord. 1543, ~ 4.6,1991) 8 ('-31 14.18.080 Identification Tag. Heritage trees shall have on them an identification tag, purchased and placed by the City, inscribed with the following information: CITY OF CUPERTINO HERITAGE TREE NO. Please do not prune or cut before contacting the City. (Ord. 1543, ~ 4.7, 1991) 14.18.090,\pplication to Remove. (There are 3 sections that discuss the tree removal application/permit process....l've eliminated the first two (14.18.090 and 14.18.120) and incorporated this information into one section. 14.18.150) If on application for heritage tree removol is submitted, the request shall be fOr\vorded to the Plcmning Commission for revievv--aAd approval. It is the applicant's responsibility to provide supporting documents os reque3ted by stoff or the Plonning Commission. (Ord. 130, (port), 1993; Ord. 1543, ~ 4.8,1991) 14.18.100 Notice List to Accompany Application. The applicant shall provide with the application. 0 list of nomcs of 011 persons owning ond/or occupying rcol propct}y locoted 'Nithin threc hundred feet of the property involved in thc applicotion. 'Nhere 0 propefty is 0 multifomily d\Nelling 'vvith more than four units, the nome of the building manager '....ill be supplied on the list. Notice of the Plnnning Commission heorin!t-\Nill be mniled to the nomes on the list. (Ord. 1630, (port), 1993; Ord. 1543, ~4.9, 1991) 14.18.110 A-ppea-h 9 l--~ ---AfHlftpea+-eHhe PlonRing Cornmiss-iBn's decision may Be ::;ubmi-Hed--te---t:Ae City Council, in core of the City Clerk within five working days of the decision. . No tree-&f1aH-be removed until the appeal proGess hos bee~ed;--(Gf<i:-4e3G, (part), 1003; Ord. 1573, ~ 4.10,1001; Ord. 1543, ~4.10, 1001) -t 4.18.124-----l~"fl_lit-l~q_ui_Fed-Hw-RemGva-h Except os provided in Section 14.18.140, no per:::;on sholl directly or indirectly femO\fe Of couse to be removed any specimen or heritage tree 0:::; herein defined, 'Nithin the City limits, without first obtaining 0 permit to do so in accordance '.vith the procedures set forth in this ch8pter. (Ord. 1543, ~ 5.1, 1001) 14.18.130 Enforcing Authority. The Director of Community Development, or his/her authorized representative, shall be charged with the enforcement of this chapter. (Ord. 1543,96.1,1991) 14.18.140 Exemptions. The following removals do not require approval of a tree removal permit:+hts chapter docs not apply to the following: A. Removal of a protected tree in case of emergency caused by the hazardous or dangerous condition of a tree, requiring immediate action for the safety of life or property (e.g., a tree about to topple onto a principle dwelling due to heavy wind velocities, a tree deemed unsafe, or a tree having the potential to damage existing or proposed essential structures), upon order of the Director of Community Development, or any member of the sheriff or fire department. )// HGwever, ./':.. subseqLlC;IJJ application for tree removal mu:::;t be filed within five\,\ ".' ~ . ... -'.'--~---_._~._'-'-_. ....__.----~ ' '<t"",.. \vorl<ing doy;-as described in Sections 14.18.150 14.18.170 of this chapter. ) ''0-.. / (}o~.e / btd-jde tl/1 10 l- 33 B. Dead trees, in the opinion of the Director of Community Development.. Remeva-l-ef-all decidoo!:.tS,fruit bearing trees. . , '-' C. J\n appreval for the removal of ;::my tree grunted by virtue of a zo~ use permit, variance, tentative map, or Planning Commission application ~-evah D. Removal of any tree ina developed residential single family, residential duplex, agricultural residential and residential hillside zoning district, except heritage, specimen or trees planted to comply 'vvith privacy protection pursuaffi to Chopter 1G.28 (Single Family Residential (R 1) Zones) except those planted en the affected property ovmers lot. E. Public utility actions, under the jurisdiction of the Public Utilities Commission of the State of California; as may be necessary to comply with their safety regulations, or to maintain the safe operation of their facilities. (Ord. 1835, (part), 1999; Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543, ~7.1, 1991 ) 14.18.150 Application and Approval Authority for Tree Removal Permit. A. ^. No person shall directly or indirectly remove or cause to be removed any protected tree without first obtaining a tree removal permit, unless such tree removal is exempt per Section 14.18.140. Applications for a tree removal permit specimen or heritage tree removol permits shall be filed with the Department of Community Development on forms prescribed by the Director of Community Development and shall state the number and location of the trees to be removed, and the reason for removal of each. 11 /-3'f ~ -----&---Applications for protected freAt-a~e tree removal shall be referred to the Planning Commission for final review and determination nppro'Jal in accordance with 8eetions 14.18.09G-;-44.18.1 00 afl€l--:l4.18.11-G Section 14.18.220 and Chapter 19.124~. The Planning Commission may approve, conditionally approve, or deny the application fora tree removal permit. A tree replacement requirement may be required in conjunction with the tree removal permit. The applicable tree removal permit fee shall apply. ReEtoosts shall be rC'v'icwe€l-pursuanHo Section 14.1 &44-G. C. When a development application is under consideration by the approval authority concerning the same property as the affected tree removal permit application, the determination on the tree removal permit shall be made concurrently by the approval authority.-(Ord. 1630, (part), 1993; Ord. 1573,98.1 (part), 1991; Ord. 1543,9 8.1 (part), 1991) 14.18.160 Director to Inspect. Upon receipt of an application for removal of a protected specimen tree, the Director of Community Development or his/her authorized representative will, within fourteen days, inspect the premises and evaluate the request pursuant to Section 14.18.180 of this chapter. Priority of inspection shall be given to those requests based on hazard or danger of disease. The Director of Community Development may refer any such application to another department or to the Planning Commission or an appropriate committee of the City for a report and recommendation. Where appropriate, the Director of Community Development may also require the applicant, at his own expense, to furnish a report from a staff-approved arborist, certified by the International Society of Arboriculture. Applications for tree rcmoval may be granted, dcnied, or grante€\-v\,'ith conditions. The Director of Community Development may, os a condition of grunting 0 permit for removal of 0 specimen tree, require the applicant to rep+aAt or reploce a tree with more than one tree when justified to replace lost tree canopy. (Ord. 1573,98.1 (part), 1991; Ord. 1543,98.1 (part), 1991) 12 1-35 14.18.170 Rev-ie-w--Gf-Application ReQuirements. A request for removal of any heritage or protected S\9eB-tffief:t tree shall include the following: A. Application information. Application for a tree removal permit shall be available from and filed with the Community Development Department and shall contain the following information, unless waived by the Director of Community Development: 1. A written explanation of why the tree(s) should be removed; 2. Photograph(s) of the tree(s); 3. An arborist report from a staff-approved arborist, certified by the International Society of Arboriculture, when required by the Director of Community Development; 4. Signature of the property owner and homeowner's association (when applicable) with proof of a vote of the homeowner's association. 5. Replanting plan 6. Other information deemed necessary by thE:! Director of Community Development to evaluate the tree removal request; 7. Permit fee, where applicable; 8. Tree survey plan indicating the number, location(s), variety and size (measured four and a half feet above grade) of tree(s) to be removed. protcctcd by a condition of approval associatcd "Nith a zoning, tcntativc map, usc pcrmit, vmiancc and mchitectuml and site approval application may bo approved by the Director of Geffl-ffit::lfH-ty Development if deemed unsafe oF-diseased or CaR eattS-C potential damage to existing or propose&-€ssential structures. The Director of Community Development may also 13 l-3fp 14.18.175 Notice and Posting Notice of any public hearing under this chapter shall be given in the same manner as provided in Chapter 19.124 of the Cupertino Municipal Code. 14.18.180 Review and Determination of Application Standards. ~ - The approval authority shall approve a tree removal permit only after making at least one of the following findings:Each rcqucst for tree removal sh()l~ bc cvaluoted based upon the standards listed under subsections ^ and B bclmN. Apprqval of a permit to remove a specimen or heritage tree may be granted if one or both of the standards is met. 1. A-- That the tree or trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; 2. B. That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not 14 1-31 typically experienced by owners of similarly zoned and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). 3. That the protected tree(s) are a detriment to the subject property and cannot be adequately supported according to good urban forestry practices due to the overplanting or overcrowding of trees on the subject property. B. The approval authority may refer the application to another department or commission for a report and recommendation. C. The approval authority shall either approve, conditionally approve or deny the application. D. The approval authority may require a tree replacement requirement in conjunction with a tree removal permit. (Ord. 1573, S 9.1,1991; Ord. 1543,S 9.1,1991) Section 14.18.185 Tree Replacement A. The approval authority may impose the following replacement standards for approval of each tree to be removed in conjunction with an approved tree removal permit, unless deemed unnecessary by the approval authority: 1. Replacement trees, of a species and size as designated by the approval authority and consistent with the replacement value of each tree to be removed using the most recent edition of the Guide for Plant Appraisal, published by the Council of Tree and Landscape Appraisers, shall be planted on the subject property on which the tree(s) are to be removed in the location(s) as designated by the approval authority. Table A may be used as a basis for this requirement. The person requesting the tree 15 J-YO removal permit shall pay the cost of purchasing and planting the replacement trees. a. If a tree cannot be reasonably planted on the subject property, the value of the removed tree(s) shall be paid to the City's tree fund (will we be establishing this???) to: i. Add or replace trees on public property in the vicinity of the subject property; or II. Add trees or landscaping on other City property. Replacement value of a tree shall be determined using the most recent edition of the Guide for Plant Appraisal, as prepared by the City Arborist. Table A -- Tree Canopy-Replacement Ratio Standard Canopy of Removed Replacement Tree Alternative Tree2 Tree (Maximum Distance)1 4 feet to 9 feet Two 24-inch box size One 36-inch box size (minimum) 10 feet to 27 feet Three 24-inch box size Two 36-inch box size 28 feet to 40 feet Four 24-inch box size Two 48-inch box size 40 feet to 56 feet Six 24-inch box size Two 36 inch size and Two 48 inch box size 56 feet to 60 feet Two 24 inch box size Combination of both and Two 36 inch box the Tree Canopy and size the replacement value - as determined by the approval authority 60+ feet Combination of both Combination of both the Tree Canopy and the Tree Canopy and the replacement value the replacement value 16 1-3ot as determined by the approval authority as determined by the approval authority 1. To measure an asymmetrical canopy of a tree, the widest measurement shall be used to determine canopy size. 2. The City shall make the determination if the Alternative Tree standards can be used. 14.18.190 Protection During Construction. Protected Spccimcn, hcritage trees and other trees/plantings required to be retained by virtue of a development application, building permit, or tree removal permit zoning, subdivi:Jion, use pcrmit, variance, or Architectural cmd Site ^pprovol Committee application opprov81, and all trees protected by this chapter shall be protected during demolition, grading and construction operations. The applicant shall guarantee the protection of the existing tree(s) on the site through a financial instrument acceptable to the Director of Planning and Development. (Ord. 1543, S 10.1, 1991) 14.18.200 Protection Plan Before Permit Granted. A. A plan to protect trees described in Section 14.18.190 shall be submitted to the Director of Public Works and to the Director of Community Development prior to issuance of a demolition, grading or building permit. The plan shall be prepared and signed by a licensed landscape architect or arborist certified by the International Society of Arboriculture and shall be approved by the Director of Community Development. The Director of Community Development shall evaluate the tree protection plan based upon the tree protection standards contained in Appendix A at the end of this chapter. 17 1-419 B. The Director of Community Development may waive the requirement for a tree protection plan both where the construction activity is determined to be minor in nature (minor building or site modification in any zone) and where the proposed activity will not significantly modify the ground area within the drip line or the area immediately surrounding the drip line of the tree. The Director of Community Development shall determine whether the construction activity is minor in nature and whether the activity will significantly modify the ground area around the tree drip line. (Ord. 1543, S 10.2, 1991) 14.18.21-0 Applicant to CU31'&Iltee--Protccti()lh The applicont sholl guarontee the protection of the existing tree(s) on the site through a financial instrument acceptable to the Director of Planning and De\/e1opment. (Ord. 1543, ~ 10.3, 1991) 14.18.220 Notice of Action on Permit-Appeal. A. Notice of the decision on an application for a protected specimen tree removal permit by the Planning Commission Director of Community Development or his designated representati'Je, shall be mailed to the applicant. B. Any decision made by the Planning Commission Director of Planning and Development may be appealed to the City Council in accordance with Chapter 19.136. Such decision may be appealed to the City Council by filing a written notice of appeal with the City Clerk within ten working days after the mailing of such notice. D. C. The City Clerk shall notify the applicant of the date, time and place for hearing the appeal. The City Council may affirm, reverse, or modify the decision of the Planning Commission Director of Community gevelopment, and its decision shall be final. (Ord. 1573, S 11.1, 1991; Ord. 1543, S 11.1,1991) 18 (-4i 14.18.230 Penalty. Violation of this chapter is deemed a misdemeanor unless otherwise specified. Any person or property owners, or his agent or representative who engages in tree cutting or removal without a valid tree removal permit is guilty of a misdemeanor as outlined in Chapter 1.12 of this code and/or may be required to comply with Sections 14.18.150, 14.18.170. Notwithstanding any other provisions of this section, the unauthorized removal of a tree planted solely for privacy protection purposes pursuant to Section 14.18.060 C shall constitute an infraction. (Ord. 1810, (part), 1999; Ord. 1731, (part), 1996; Ord. 1543, S 12.1, 1991 ) APPENDIX A STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND CONSTRUCTION OPERATIONS The purpose of this appendix is to outline standards pertaining to the protection of trees described in Section 14.18.200 of Chapter 14.18. The standards are broad. A licensed landscape architect or International Society of Arboriculture certified arborist shall be retained to certify the applicability of the standards and develop additional standards as necessary to ensure the property care, maintenance, and survival of trees designated for protection. Standards 1. A plot plan shall be prepared describing the relationship of proposed grading and utility trenching to the trees designated for preservation. Construction and grading should not significantly raise or lower the ground level beneath tree drip lines. If the ground level is proposed for modification beneath 19 ,-4~ the drip line, the architectlarborist shall address and mitigate the impact to the tree(s). 2. All trees to be preserved on the property and all trees adjacent to the property shall be protected against damage during construction operations by constructing a four-foot-high fence around the drip line, and armor as needed. ' The extent of fencing and armoring shall be determined by the landscape architect. The tree protection shall be placed before any excavation or grading is begun and shall be maintained in repair for the duration of the construction work. 3. No construction operations shall be carried on within the drip line area of any tree designated to be saved except as is authorized by the Director of Planning and Development. 4. If trenching is required to penetrate the protection barrier for the tree, the section of trench in the drip line shall be hand dug so as to preclude the cutting of roots. Prior to initiating any trenching within the barrier approval by staff with consultation of an arborist shall be completed. 5. Trees which require any degree of fill around the natural grade shall be guarded by recognized standards of tree protection and design of tree wells. 6. The area under the drip line of the tree shall be kept clean. No construction materials nor chemical solvents shall be stored or dumped under a tree. 7. Fires for any reason shall not be made within fifty feet of any tree selected to remain and shall be limited in size and kept under constant surveillance. 8. The general contractor shall use a tree service licensee, as defined by California Business and Professional Code, to prune and cut off the branches that must be removed during the grading or construction. No branches or roots shall be cut unless at first reviewed by the landscape architectlarborist with approval of staff. 20 1-43 9. Any damage to existing tree crowns or root systems shall be repaired immediately by an approved tree surgeon. Disclaimer: This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing Corpora lion provides tliese documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally. the formatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. For further information regarding the official version of any of this Code of Ordinances or other documents posted on this site. please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588. @ 2005 American Legal Publishing Corporation techsuDDort@amleoal.com 1.800.445.5588. 21 } -Lflf AkiHonda From: Sent: To: Cc: Kiersa Witt on behalf of City of Cupertino Planning Dept. Thursday, September 14, 2006 8:28 AM Ciddy Wordell Aki Honda Subject: FW: tree ordinance Regarding the Tree Ordinance -----Original Message----- From: Gail Bower [mailto:gbower@levanta.com] Sent: Wednesday, September 13, 2006 5:31 PM To: City of Cupertino Planning Dept. Subject: tree ordinance Hello, Exhibit 8 I wanted to ask if we shouldn't put redwoods, sycamores and black cottonwoods on the list of protected trees? These are all important habit trees and natives. I hope these can be called out specifically on the tree ordinance information. Thank you, Gail Bower Sr. Marketing Programs Manager Levanta qbower@!?vanta.com 650-403-7246 www.levanta.com 9/19/2006 1-45 Page 1 of 1 Aki Honda From: Sent: To: Kiersa Witt on behalf of City of Cupertino Planning Dept. Tuesday, September 19, 2006 8:26 AM Aki Honda Subject: FW: Comments on Proposed "Heritage and Specimen Trees Ordinance" Change -----Original Message----- From: Yvonne Chen [mailto:ychenOl@yahoo.com] Sent: Monday, September 18, 20062:59 PM To: City of Cupertino Planning Dept. Subject: Comments on Proposed "Heritage and Specimen Trees Ordinance" Change Dear Cupertino Planning Commission, I would like to comment on the proposed "Heritage and Specimen Trees Ordinance" change. I just moved to Cupertino last year after purchasing a property on a hillside with several California live oak trees on my property. There.is one tree that has exposed root system hanging over my garage in danger of falling over. When I inquired about a permit to remove it, I was shocked at the fee required - $819 for the "director" permit and $1000 for an arborist inspection. The fee was more than the cost to actually remove the tree. I don't understand why the permit fee is so high and what does a $1000 arborist fee cover. They both seem so excessive. It would be cheaper for the tree to fall over and let my homeowner insurance cover my losses since I just have to pay my $1000 deductible. It seems rather ironic. So now I have a tree that hangs over my garage that I have decided not to remove for now. I hope this gives you a view from a resident of Cupertino. I think the fees are excessive. And the permit approval requires a public hearing which is even more hassle since not everyone is familiar with the process. I think a tree permit should be like any other building permits (i.e. re-roof' permit) with reasonable fees. And I hope planning commission will move us in the right direction. Feel free to contact me if necessary. Thank you. Yvonne Chen Cupertino resident APN 342-17-046 Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com 9/19/2006 1-% Exhibit C Provide direction to the Planning Commission regarding proposed amendments to Chapter 14.18 of the Cupertino Municipal Code (Heritage and Specimen Trees). City Planner Ciddy Wordell reviewed the staff report via a PowerPoint presentation. Donald Anderson said that it is the City's responsibility to deny a resident a permit for a solar system if any trees are in the way of the solar system. He noted that in his particular case, the City should have known there was a conflict of interest with its desire to keep trees even if they were blocking his solar panels. He read a proposed ordinance that he submitted to Council. Jennifer Griffin said that the protection of trees is important and most cities have tree ordinances. She urged Council to make sure street trees and heritage trees are protected by fencing when homes are constructed. Julia Tien talked about the exemption of public utilities in pruning protected trees. She showed a picture of a tree that had been pruned back quite a bit and urged Council to add some language to the ordinance to minimize the clearance requirements for protected trees. She suggested that PG&E could install power pole extensions near protected trees to move the high voltage lines away from the trees to minimize the amount of pruning required. She noted that this would allow the trees to keep more of their natural form and look more aesthetic. City Attorney Charles Kilian noted that the City has not jurisdiction to tell PG&E what type of wire to use and where to put it. Mayor Lowenthal asked that staff give Ms. Tien the contact information for the public service contact at PG&E, and also that he would be happy to be present in the meeting as well. Council made the following comments to staff regarding amendments to the ordinance: 1. Tree Protection: . Confer with the City arborist regarding recommended trees to add to the list . Confer with the City naturalist regarding indigenous trees . Look at the makeup of the City and what trees we currently have to decide what protected trees to keep on the list . Add wording to make unsafe or dead trees exempt, but involve the arborist in making that decision . Add wording regarding other circumstances leading to the demise of the tree 2. Approval Authoritv: . The Planning Commission should hear issues regarding the illegal cutting of trees 1-'-16 . Keep approvals at the stafflevel as much as possible, but do 300 foot noticing 3. Penalties: . For civil penalties, the person should replace the tree and pay a fine · The City Council can modify the penalty on an appeal · Compare penalties of other cities · The penalty should increase as each offense occurs . Anyone who removes a tree in violation would need to apply for an after the fact permit and come before the Council for conditions to be placed on the restitution · After the fact permits are a violation and should cost more . Any pending applications won't be fmalized until there is an approval of an after the fact permit . The location, size, and how long one has to replace a tree is important 4. Noticing: · 300 feet for staff or Planning Commission . Put the notice on the tree itself during the appeal time 5. Solar panels: · No amendment Other Council comments included: . Look into the idea of transplanting trees from mature landscape areas to areas in the City that are tree deficient . Look into whether the ordinance should outline tree protection during construction 1-tft1 Exhibit 0 .~ .,.~ CITY Of CUPERJINO 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 FAX (408) 777-3333 Community Development Department SUMMAR Y AGENDA NO. \1 AGENDA DATE August 15, 2006 SUMMARY: Provide direction to the Planning Commission regarding proposed amendments to Chapter 14.18 of the Cupertino Municipal Code (Heritage and Specimen Trees). RECOMMENDATION: Staff recommends that the City Council review and provide direction to the Planning Commission on the proposed Draft Model Ordinance. This draft is in the beginning stages and is only intended to stimulate discussion. A public hearing will be scheduled for the September 26, 2006 Plam1ing Commission meeting. BACKGROUND: The City Council has requested that Chapter 14.18 (Heritage and Specimen Trees) of the Cupertino Municipal Code be reviewed for proposed amendments. Staff requests direction from the City Council on the following questions related to possible amendments: 1. Tree Protection: Is the current protected tree list adequate, or should additional trees be included, such as eucalyptus, redwood, pine and palm trees? 2. Approval Authority: Should the Planning Commission be retained as the approval authority for tree removal permits, or should staff be allowed to make determinations in particular situations (e.g., tree removal permits in conjunction with R-1 privacy protection plans)? 3. Penalties: What type of penalties should be imposed if a protected tree is removed without a permit? Should there be a monetary (civil) penalty? Should there be a requirement for additional replacement trees (e.g., two or three times the replacement ratio standard)? Should a combination of replacement tree and monetary penalty be imposed? 4. Noticing: Should the noticing requirement for public hearings on tree removal permits follow the minimum 300-foot radius noticing of property owners for Use Permit and Variances? Should a smaller (e.g. ,neighboring properties) or larger (e.g., 500 foot) radius of notification be required? t-5D Heritage and Specimen 1" vC Ordinance Page 3 August 15, 2006 3. Penalties: Staff has not recommended changes to the" penalty" section, pending What type. of penalties should be imposed if a City Council direction. The Council may consider a monetary (civil) protected tree is removed without a permit? penalty, a higher replacement ratio requirement or a combination of Should there be a monetalY (civil) penalty? both. S~lould there be a requirement for additional replacement trees (e.g., two or three times the Council may also want to consider adding language that pending and replacement ratio standard)? Should a proposed applications and building permits. not be approved until the combination of replacement tree and monetary violation has been remedied. penalty be imposed? 4. Noticing: New section added to address noticing requirements to follow Use Should the noticing requirement for public Permit and Variance noticing requirements, including a minimum 300 hearings on tree removal permits follow the foot radius notification of property owners. minimum 300 foot radius noticing of property owners for Use Permit and Variances? Should a smaller (e.g. neighboring properties) or larger (e.g., 500 foot) radius of notification be required? 5. Solar Panels: Staff requests Council direction on how to address this question. Should consideration be given to allow protected trees to be removed for solar panel access? In addition to the above-referenced draft revisions, staff has added findings in Section 14.18.180 to consider allowing the removal of trees where the protected tree(s) are a detriment to the subject property due to overplanting or overcrowding of trees on a site. An example is the recent retroactive tree removal application for the removal of six coastal redwood trees that were planted in small and narrow planter areas between townhouse units at the Joseph Circle townhouse complex off of Vista Drive. In this particular case, the trees were overgrown and crowding into the planter area causing damage to the adjacent townhouse walls and fence. Prepared by: Aki Honda, Senior Planner SUBMITTED BY: APPROVED BY: ~/ Zo~ , Ciddy Wordell City Plam1er, Community Development ~ David W. Knapp City Manager Enclosures: Exhibit A: Draft Model Ordinance G: PlanninglPDREPORTlccl20061Tree Ordinance Report to Cc. Aug J 5.2006 I~S~