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draft Minutes 10.24.06 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 6:45 P.M. CITY OF CUPERTINO PLANNING COMMISSION DRAFT MINUTES October 24, 2006 CUPERTINO COMMUNITY HALL TUESDAY The regular Planning Commission meeting of October 24, 2006 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Marty Miller. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Vice Chairperson: Commissioner: Commissioner: Commissioner: Marty Miller Lisa Giefer Cary Chien Taghi Saadati Gilbert Wong Staff present: Community Development Director: Steve Piasecki Senior Planner: Aki Honda Assistant City Attorney: Eileen Murray APPROVAL OF MINUTES: October 10. 2006 Plannine Commission minutes: Corrections as noted: . Page 15, Vice Chair Giefer: Third Bullet: It says story poles that should be replaced with clothes line. The same page, bullet 5: "He" should read "She". . Page 27, Vice Chair Giefer: References to "He" should read "She". . Correct spelling of applicant's name is Hamm, on Pages 19-24. Motion: Motion by Com. Chien, second by Com. Saadati, to approve the minutes of the October 10, 2006 meeting as amended. (Vote: 5-0-0) WRITTEN COMMUNICATIONS: None POSTPONEMENTSIREMOV AL FROM CALENDAR: 2. ASA-2006-19; M-2006-05 (EA-2006-17) Mike Rohde (Vallco Fashion Park) 10123 No. Wolfe Road Architectural and Site Approval and a Modification to a Use Permit (U-2005-19) for the parking structure north of Macy's to exceed the permitted 32-foot height limit and to allow parking on the fourth level. Cupertino Planning Commission 2 October 24, 2006 Request removal from calendar. Continued from the September 26, 2006 Planning Commission meeting. 3. TM-2006-09 (EA-2006-15) Dennis Liu; 10377 Amistad Court Tentative Map to subdivide a 21,382 square foot parcel into two parcels of 11,101 and 10,231 square feet, respectively. Request removal from calendar. Planning Commission decision final unless appealed. Postponed from the October 10, 2006 Planning Commission meeting. Motion: Motion by Com. Wong, second by Com. Chien, to remove Applications ASA-2006-19, M-2006-05, EA-2006-17, TM-2006-09 and EA-2005-15 from the Planning Commission calendar. (Vote: 5-0-0) ORAL COMMUNICATIONS: Jennifer Griffin, Rancho Rinconada resident: . Referred to a new housing development at the comer of Lawrence Expressway and Pruneridge Avenue, in the City of Santa Clara, and expressed concern about the potential problems which may occur if the school district boundaries were changed. She said she felt that the existing homes should have priority in sending their students to the existing high schools and elementary schools. Steve Piasecki, Community Development Director: . Urged Ms. Griffin to contact the school district and the City of Santa Clara regarding her concerns. CONSENT CALENDAR: None PUBLIC HEARING: 1. MCA-2006-02 City of Cupertino Citywide Location Municipal Code Amendment of Chapter 13.18 (Heritage and Specimen Trees). Continuedfrom the September 26,2006 Planning Commission meeting. Tentative City Council date: Unscheduled. Aki Honda, Senior Planner, presented the staff report: . Reviewed the background of the application, which originated at the August 2006 City Council study session to discuss possible amendments to the tree ordinance as a result of its concerns on receiving a number of applications for retroactive tree removal. City Council asked that the city look at addressing greater remedies for tree removals which occurred without permit and also to provide greater clarity in the exiting ordInance. They requested that the Planning Commission provide direction on possible amendments to the ordinance and bring it back to the Council; it was brought to the Planning Commission at the September 26th meeting for initial review and at that time the Commission asked for public comment to be given and also for the city arborist to make his presentation and recommendations on the tree ordinance. . She reviewed the discussion items and staff responses relative to the public testimony heard and the review of the model tree ordinance, including cost of tree removal permits; penalties for illegal tree removal; definition of dangerous and dead trees; list of protected trees and definition of heritage and protected trees; protected tree size; and replacement plan, as outlined in the staff report. Cupertino Planning Commission 3 October 24, 2006 . Staff recommends that the Planning Commission discuss and provide direction on amendment to Chapter 14.18 and continue the meeting to the December 12, 2006 Planning Commission meeting to provide staff sufficient time to incorporate suggested changes and address any questions or issues raised by the Planning Commission. Staff responded to Commissioners' questions relative to maintenance of trees, penalties imposed for tree infractions and tree removal; definition of protected trees. Steve Piasecki: . In response to Com. Chien's question about the goal of the tree management plan, he said that when new developments come in, a landscape plan is developed and is typically over- planted for immediate cover. A good landscape architect could say that in 15 years it would need to be thinned out. It could be recorded against the property; and the future HOA, office, or owner will come into the city and say that they want to thin out the trees which are on the recorded deed and is permitted according to the management plan. . He said the dilemma will be that the public is not going to understand that when every other tree is being cut down on Wolfe Road in front of Vall co; hence a public relations issue may result. He said they feel it is in the interest of the health of the tree and in the interest of the canopy to allow that to happen. Com. Chien: . Questioned if it was the intention to apply the plan and enforce it on anybody from Rl residence up to large developments. Steve Piasecki: . R1 would be more difficult, although you could have an instance where you over-planted a privacy protection screen so you could get a more immediate impact and you may want to have a plan that would say, in the year 2010 you can take out every other Italian Cypress; that would be okay; that would be their option that they could elect to do to make it clear and simple. . An individual homeowner could ask to have that recognized up front or it could be a subdivision where you required a six lot subdivision that all these five or six different locations where you are doing privacy planting, and/or it is obvious that this canopy will overwhelm the small lot in time they could choose to identify that or record it, and we would allow that to happen in due time. . Relative to the costs for developing the plan, having an arborist identify the planting scheme is the biggest cost; otherwise it is a part of the normal development review process. Staff would try to keep it minimal, but an arborist may say they need some time to figure it out. . There have been instances come before the Planning Commission where HaAs took out every redwood tree in a particular location; if they had a management plan in effect, they might have said that they knew they could take out five of the ten trees, because they have reached that point in their life cycle where they need to canopy up and are trying to head off some problems faced in the past and provide more flexibility in the ordinance. . He cautioned the Commission that they are complex ordinances, because everything imaginable happens under a tree ordinance. He encouraged them to take the time needed to craft something in the best interest of the individual property rights, and the best interest of the city overall. Aki Honda: . Said that the ordinance applied to public parks and private property, except for street trees, and except for dangerous and dead trees. Cupertino Planning Commission 4 October 24, 2006 Com. Wong: . Asked staff what ordinance the street trees were covered in. . Referred to Vice Chair Giefer's concern that ifthere are certain trees that should be protected, she suggested a method of putting it under heritage trees, which creates more homework to find them. He suggested the Commission or public write emails to staff with suggestions for a plan to add more trees to the heritage trees. Steve Piasecki: . He said the Planning Commission could ask that funds be budgeted and suggest a citywide survey; it is not something that staff would go out and find; there are thousands of trees in Cupertino. Aki Honda: . Said that street trees were not in the ordinance, but in Chapter 12 of the Municipal Code. Com. Wong: . Said he was concerned about lack of education of the community; and said that ignorance cannot be a defense for removal of trees. He said he was also concerned about enforcement of the ordinance. He asked what the city's plan was to implement the policy. Aki Honda: . Said that arborist Barry Coates suggested having a brochure available for the public that lists key points, when a tree is protected and when it is not. He suggested that it be included in the application forms. Steve Piasecki: . Reported that the city of Los Gatos uses a strategy where they revoke the business license of a tree company that removes a protected tree; keeping in mind that the city attorney would advise you still need a due process provision somehow for that because were they really guilty of doing that, did they do it with full knowledge? . The attorney advises to have something recorded on the deed, and one thing that could. be done is to go back and retroactively say that there is a landscape plan and it will be recorded on the deed. Eileen Murray, Assistant City Attorney: . Said that removal of a 200 year old specimen tree would be a misdemeanor, and a $1,000 fine; a privacy protection shrub would be $250. She clarified that the misdemeanor charge will cause them to come in and apply, spend $1,000 for an arborist report, and $1,000 for a replacement tree. . Presently there is not a civil process or administrative process in the ordinance, only a criminal process. Com. Wong: . Asked staff to provide a sample of a recorded deed when the application returns on December 12th. . Relative to the tree replacement on Page 1-39, is it a new tree replacement plan, or an old plan? Aid Honda: . Said that it is all new language; and is taken from the Town of Los Gatos, because there are Cupertino Planning Commission 5 October 24, 2006 not specific tree replacement standards in the current ordinance. This is to stimulate some thoughts and discussions to consider. Staff is not necessarily recommending this particular format, this format uses tree canopy spread to determine a replacement ratio; the city arborist recommended that it was better to use the trunk diameter at the diameter breast height to determine the tree size of the tree removed, and use that to determine the tree replacement requirements that you would like to impose. Com. Wong: . Requested staff to provide their suggestion in the staff report, so that the Commission could see the difference from the Town of Los Gatos, because he said he felt it looked excessive in his opinion, and he wanted to see what other alternatives the city arborist suggested. . Expressed concern about the outreach done for tonight's public hearing and also regarding the outreach of the tree professional folks to come and hear their side of the story as well as both sides of the coin. Aki Honda: . Clarified because it was a public hearing item, no new notices were sent out; interested people and those who went to the initial meeting or viewed it on the City Channel would follow up to find out the outcome and know that it was continued to tonight's meeting. Com. Wong: . Relative to the December 12th Planning Commission meeting, he suggested that the community be re-notified, and the tree professionals and city arborist be specifically notified. (Staff said they could do a citywide notice). . He asked for the pros and cons for adding to the protected tree list. He expressed concern that adding to the list of protected trees, would put the burden on the homeowner or applicant to ascertain if the tree is protected or not. He said he was looking at the process as well as enforcement. Aki Honda: . She concurred that the burden would fall on the property owner; concern was raised in the public comments that the more trees added, the more it would affect the property owners and their yards. From an enforcement standpoint, it would be whatever the Commission decided for the ordinance or the existing ordinance if it is an existing situation. Com. Wong: . Said it may become a nightmare for staff, to find the trees, and a dedicated planner may have to be hired to do tree enforcement. Vice Chair Giefer: . Relative to the current policy for heritage trees, she asked staff to explain the present process of how a tree becomes a heritage tree. Who would nominate the trees to be heritage trees? What is the process for nominating a tree to be considered a heritage tree? Aki Honda: . Said that the ordinance as currently written says the heritage tree goes through DRC review; in the definition section, it states that the DRC would find the tree. Anyone can nominate a tree; it would go through an application process through DRC. Steve Piasecki: . The definition of a heritage tree states that it is any tree or grove of trees which, because of Cupertino Planning Commission 6 October 24, 2006 factors, including but not limited to historic value, unique quality, girth, height, or species, has been found by the Planning Commission, to have a special significance to the community. Anybody can nominate any tree, any grove of trees, to the Planning Commission. . There is no specific application process, they come to the Planning Commission meeting, and ask that you designate certain trees. More information would be requested and it would be agendized for discussion and notification would be provided to everybody in the area of the particular trees location, to seek their opinion. Vice Chair Giefer: . Said it was a good dialog to have because it is unclear how to move forward on this process. She said as a Planning Commissioner, she did not feel that the policy is explicit enough in how you do something and what penalties one might face if you do have a problem. She said they would not be discussing it if they weren't having issues with people doing things we would rather them not be doing, such as removing trees. . Said it was the behavior they were trying to correct. . Said they could do some corrections on the tree list. Asked if there was a difference having a protected tree list as an addendum to the ordinance rather than in the ordinance? The answer given several years ago was, if it is in the ordinance, you can change it less frequently and it may make sense to take the protected tree list out because it is easier to maintain the list. How do you feel about that now? . Said the protected tree list is the species of trees. Steve Piasecki: . Said the intent is to look at it as being somewhat self-enforcing; property owners are responsible, they need to go somewhere and find it in an ordinance format that they clearly violated the ordinance. If you have it as a side tree list that gets changed more readily without public notice, part of it is just the notice, making sure people are aware. It doesn't help when after a citywide notice, only two people show up at the meeting. Vice Chair Giefer: . Said she received many emails since the last meeting regarding different ideas on how to move forward on the tree policy. She encouraged the community to continue sending in emails. . She said previous commissioners mentioned that for a developer or contractor, it is an infraction; but a misdemeanor for a homeowner if they remove a tree. She asked for the reason for the difference? Eileen Murray: . She said it was an incorrect interpretation; it depends on the kind of tree; if it is a privacy protection tree, it is an infraction, everything else is a misdemeanor. . She did not know what the rationale was when that was put into the ordinance, but it is specifically spelled out that it is an infraction. . She said it was the decision of the Planning Commission; should people be criminalized for removing a privacy shrub? . Said it is a privacy protection planting, not specimen trees, and most trees that are protected in the construction arena, are specimen trees. We really go out of our way to protect them for good reason. But privacy protection can be any landscaping, and that is really why I think it is an infraction. Cupertino Planning Commission 7 October 24, 2006 Steve Piasecki: . Relative to the heritage tree list, he suggested Page 1-30, Section 14.18.050, be expanded to identify the process for heritage trees being nominated. Vice Chair Giefer: . Said she would be more comfortable with that if the other commissioners agreed. She asked if the commission set what the penalty is for the misdemeanor. (Staff responded that it was set by law). . She questioned Los Gatos' $5,000 charge. Eileen Murray: . Said that she would inquire about the charge from the Los Gatos city attorney, because her reading of the state law says $1000 maximum on administrative process. . Saratoga has an administrative process set up, and maybe Los Gatos does; Palo Alto is a charter city, so they can charge. Cupertino is not a charter city; it is a general law city. . Said she would return with information on the $5,000 because in some of those ordinances, they talked about a civil action and they may be discussing their administrative process, or they may be discussing some other civil action which we don't have in our ordinance for tree removal. She said she was not aware of what tort would allow set up of that penalty. She said she would find out more about their process, what civil action they are taking that allows for that, unless it is damages or replacement costs or some other thing they are designating up to $5,000. Vice Chair Giefer: . Asked how they could pro actively notify residents if they have a protected tree or heritage tree that has already been recorded. She noted that when purchasing a home, one mayor may not go through all of the closing documents and see that there are protected or heritage trees on the property. . What can the city do to try to educate homeowners, property owners and businesses that they have trees that fall into those categories. How extensive a task is that? Aki Honda: . Said that it was a fairly extensive task; it may not be known currently if the tree is protected by a privacy protection plan and it is on the property owner's burden to know. It is difficult to know when property changes hands to let the new owner know that it is a protected tree on their property. . A brochure could be handed out to homeowners when they apply to add onto their house, that would provide information on existing trees on the property, and to inform them to check with city staff whether or not the tree( s) are protected. . Said that currently when someone comes to the Planning Department counter, they may not know a lot about the property. Staff informs them that they need to check if there are any trees on the property at that time to check to make sure they are not protected. If someone brings in a plan for staff to look at, they will check it. Eileen Murray: . Said that one problem with that is protected trees may be recorded but specimen trees are not; there are thousands of trees in the city, and they are not static; one year they are not protected and another year they get big enough to be protected, and there is no way to assess that. . The only way to protect those trees is by education, and getting the word out on what a Cupertino Planning Commission 8 October 24, 2006 specimen tree is. One of the things that code enforcement is doing now, is rotating articles in the Cupertino Scene, one is on protected trees; one is on dogs; one is on parking, and there are four articles being rotated into the Scene so each month there is something about code enforcement. Steve Piasecki: . Said that when development applications come to you, you are familiar with seeing a fairly extensive tree inventory, and some of those are specimen trees and in some cases, through that development approval process, you may authorize the removal of a specimen tree because you are obtaining some other objective, providing a reasonable use of the property or protecting another grove of trees where this tree was in the way and it was just not practical to save it. You are familiar with all that; once that is done you try to make sure the conditions say that it shall be recorded so that future property owners are aware of the requirements to protect these trees. That is not foolproof either, because as you know we see trees removed. . It needs to be flushed out more and that will be one of the tasks with the continuance, to look at some practical ways. Vice Chair Giefer: . Said there appears to be a disconnect between the landscape plantings where I think back when I first started back on the DRC there were a number of people who came in where trees were removed in a planned development, where the trees were supposed to be recorded. The new owner comes in, buys one of the houses, removes the tree; the neighbors were upset because to the best of their knowledge, it was recorded, but it had never been recorded with the land because it was planned development; I don't understand the technicality ofthat. It seems to me that we do have some cleanup there where if we have trees that are heritage, specimen, or as part of this committee decides to make it a misdemeanor to remove trees from a landscape plan that they should be recorded, and we should try to make that connection to try to help educate and solve that problem as well. . I am interested in what the city attorney will learn and come back to us; because I do think that it is the carrot and the stick; we want to encourage behavior which is correctly coming in and asking for a tree removal and have appropriate fees for that and a reasonable list of what is protected. But we also want to levy what fines we can on the back end, plus tree replacement, when the behavior is not appropriate; when they remove the tree because it is cheaper just to pay $1,000 than it is to not build that extra 1,000 square feet of a home. Eileen Murray: . One issue about the fines, if we had an administrative process and we could add $1,000 in that, we can also issue a citation for a misdemeanor, so you can collect at both ends; but when you rely on the court for a misdemeanor, even though the maximum fine is $1,000, they might fine them $180; we can't rely on the court. They are more likely to be looking at shoplifters, drunk drivers and other misdemeanors, and see tree issues as small in the scale of things. Vice Chair Giefer: . Suggested adding native madrones to the protected list; they are native to the area although more up in the hills. No one has requested removal of them and she said she would not want to hasten their longevity if there are any existing. . I like the criteria of using native species as a part of the protection; the western sycamore which is a very valuable, very large tree, with a lovely canopy; I do feel that the recommended size at breast height of 4 inches is too small at that height; it should be a bigger species, because it is a fairly robust, quick growing tree, and one of the comments which was made Cupertino Planning Commission 9 October 24, 2006 during our hearings was we are trying to come up with tree sizes that are comparable in age, and I think that the tree, a 4 inch sycamore is not the same age as some of the comparable oaks that are being specified; so I think we can almost double that trunk size. . Suggested that the California pepper tree also be added to the protected tree list, since there are very few in the area. . I also think we do have some trees that are non-native, that in general, I would be very willing to remove from the protected list, except for some specific areas, based on the input we received from the community as well as the city arborist. . There is a lot of detailed information that I have, and actually some specific questions. When we look at under protected trees 14.18.035, on that chart, on the multi-trunk diameter circumference; is that the cumulative diameter of all trunks. (Staff response: Correct, at 4.5 feet) . I don't know the best way to convey this, but I have a lot of notes that are not large changes to this, but just some different ideas in terms of verbiage; one of the questions I have is how are we going to get caught up on identification tags on trees that are heritage trees; which based on the report you gave us before, there is not a lot of them in the city that are specified as heritage. The palms on Palm A venue as an example; one of the residents recently told me that there is a construction site going on and one of the palms they believe were protected, was removed during construction. Again, an example of trees that were specifically protected, tags never installed on those trees, 14.18.080, identification tags: heritage trees shall have on them an identification tag purchased someplace by the city and inscribed with the following information: and it is regarding being designated as a heritage tree, and we have never done that. So it sounds like technologically it is possible, Mr. Coates talked about that when he was here and we probably have a half dozen that need tags. Why is the city not in compliance. . I would like to add how are we going to maintain that on our current ordinance that we are not following. . I would like to add some burden for staff on how we are going to maintain and go out and check and make sure those tags are in tact in the future, because once we put them up, we want to ensure they stay up and the trees stay up. Steve Piasecki: . Said they need a mechanism to do that; tags can be removed as well. They can at least say they did it. Aki Honda: . Said staff could discuss it with the city arborist, as he had suggestions about types of tags. Vice Chair Giefer: . Said she was concerned about the area of Director approval on trees. There are various levels of staff training; She recalled an incident when a new staff member erroneously issued a tree removal permit at the counter for a heritage oak tree. . Expressed concern about how and who will make the director's approval to issue the tree permit. She said she did not want it be complex, provided that the tree is properly identified, but how will staff be trained. She said she did not have a problem if it was the city naturalist who is the only one that is going to issue them, because that person has some training. However, if it is every planner on staff, staff would have to be aware that there are some trees that we need to be concerned about on lots. She said she was concerned that people get very busy, and aren't going to look at the trees, they may be looking at the site and the home that is going to be built. People who are new and may not understand the policy and the sensitivity, so again it is personnel that oftentimes can have something well crafted, fall through once we all agree on it. Cupertino Planning Commission 10 October 24, 2006 · Asked how they would adequately train their staff. Steve Piasecki: · It is not only the 'who' but the procedure that we would follow; it might be a good thing to talk about whether it becomes an administrative procedure or an ordinance procedure. Vice Chair Giefer: · Said she agreed that trunk height is a better way to go than canopy replacement. She said she received many emails about canopy replacement, and conceptually agreed that it is what they were trying to achieve. They want to have a robust urban canopy within the city which should be 40% of the total square footage of the city. . She said she did not not how to make that happen without crowding, and nature can eliminate the weaker species, but it also might bring up half your house while that is occurring. I don't want to have to wait for that to play out as well. . Said she supported the breast height measurements instead of canopy. Steve Piasecki: · Asked that the Planning Commission standardize either 10 inch or 12 inch. Vice Chair Giefer: . Said the age of tree is important. Steve Piasecki . He said there will be discussion and the commissioners will express what they want. He said that he preferred standardization. Eileen Murray: . Said she agreed with that and had talked to Code Enforcement about the difference of things. She said she understood Mr. Coates' point as an arborist. Relative to enforcement, the tree service person says you should make it uniform or people won't understand it. The presence of the stump does not indicate what type of tree it was. . This ordinance is for enforcement, it is not for planting of trees. Vice Chair Giefer: . I think that is well taken; once a tree is cut down and you are looking at a stump; what was it. That is a difficult call for us to make, but in advance if the tree is standing and somebody asks for a permit to remove it, where you can correctly identify the tree, would you be comfortable, or do you feel there is a difference in forcibility of a standing tree which has not yet been removed vs. one that has been removed. Eileen Murray: . Said the public would be more comfortable if they knew it was a 10 inch tree or 12 inch, and that was what the rule was. Vice Chair Giefer: . Said it was problematic regarding oaks, and they would lose a lot. Com. Chien: · Asked if they preferred that the trunk diameter at breast height would be 10 inches for all protected species. Cupertino Planning Commission 11 October 24, 2006 · Asked the city attorney if code enforcement went out, wouldn't they have to figure out what species it was regardless of what the diameter was. Why would it matter whether it was 10 inches for oak or 12 inches for a big leaf maple? Eileen Murray: · They would need to know that it was a protected tree, so they have to know something about that. Steve Piasecki: · Relative to stating 10 inches, he said they would have to check to see if it is protected. The simplicity of that is important in ordinances like this. Eileen Murray: · Said it is easier for code enforcement to not have to prove that it was a maple or a buckeye. They would have to know it was a specimen tree. Vice Chair Giefer: . Pointed out that somebody who lives nearby generally sees the tree and says it is an issue; they are cutting down a tree that is protected; 99% of the people living in the community see a tree going down, and just ignore it. One percent who sees it cares, and says they think it is a big leaf maple or oak tree and calls code enforcement before the tree is down, and so you are going to have a small percentage who actually do have some idea of what tree is being removed and cares, and other than that, they are going to be able to remove the tree and get away with it. · Said it would be helpful to have some idea from code enforcement on how many times they go out and find a tree that is protected that should not be removed and somebody is cutting down. . She expressed concern if they said an 8 inch trunk, instead of 10 inch trunk, because there is a significant difference in terms of the age of the 8 inch oak vs. a 10 inch oak. Eileen Murray: · Frequently they go out on calls and it is not a protected tree. Although they are not arborists, they do have knowledge about the trees. Whatever you do say, it should be uniform for enforcement purposes. Vice Chair Giefer: · She referred to Appendix A of the current policy standards, No.6, where it refers to the area under the drip line of the tree, stating that it should be kept clean, no construction materials, etc... She said she would also like to add no parking or storage under the trees which is what currently is on the building plans. · Suggested making it less expensive for people who follow the rules and come to the Planning Commission in advance to ask for a tree removal permit; and making it much more expensive for people who remove the tree first and go the Planning Commission and ask for forgiveness. · Whatever we can do to make that happen and then we need to educate the community and do what we can to record the trees that we have and tag the trees that we have and maintain those tags. Chair Miller: · Clarified some situations brought up by some community members at previous hearings and in looking at Page 1-6 with respect to city trees, it says 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. Cupertino Planning Commission 12 October 24, 2006 . When the Blackberry Farm tree came up, there was a discussion where it was unclear as to how much latitude the city had or didn't have to remove trees. With respect to that, what this says is that the city trees come under the ordinance like every other tree in the city, there seems to be a loophole that is if the tree is declared a hazard and needs to come down, it is under exemptions 14.18.140 on Page 1-33 where it says "upon a tree deemed unsafe or a tree having a potential. . . ..Fire department . He asked why they did not require a subsequent tree removal permit after a tree has been taken down. Aki Honda: . I think when we were first going through the preliminary reviews of this ordinance and looking at possible changes and as we were reading this and we initially looked at taking that out, not necessarily recommending it at that time, but thought it adds to confusion saying you are exempt from this ordinance but you actually have to get a tree removal permit afterwards in this case, which means you need to comply with the ordinance. It is confusing to say it is exempt, but you still need a permit. But I think after hearing discussions subsequent to that, hat it looks like the Planning Commission recommendation to actually add that back in, so we could go ahead and make that language to add it in. Chair Miller: . Said it was a question of checks and balances; and also at that meeting staff indicated that the Blackberry Farm tree was brought to us just as a point of information and not something that we had control over or could vote on; and I am not sure; and that is another issue for me in terms of checks and balances. . Expressed concern that someone can decide they want to take a tree out and then have an arborist come in and declare that the tree needs to be taken out; and then get around the intent of the ordinance. He asked if that was a misinterpretation. Steve Piasecki: . Based on what you are describing, you would probably want to take it out of the exemptions section and say there will be a process but keep in mind that staff showed pictures of some trees in Blackberry Farm that nature took out because they were undermined by the creek. Is that exempt or is it not exempt. Chair Miller: . Said they did not want to stop people from taking down dangerous trees; but wanted to protect life and limb, and make sure that that part of the ordinance is not abused. . Relative to the Blackberry Farm issue, one of the residents also made the comment that the tree was marked for removal and wasn't taken down for several days after that. Staff made the decision not to take the tree down until after the park was closed. He questioned why the tree be left for several days knowing there was a dangerous situation, rather than acting on it immediately. Steve Piasecki: . Said they were not part of that process and did not know what the rationale for the decision was. He noted there were different degrees of danger and said he was not sure if the area was roped off, or if they did something else to take precautions about that particular tree, but it would seem that there would be a reasonable process you would follow in light of dangerous trees. We don't want to have the public bearing the liability for a tree that is in imminent danger of falling. Cupertino Planning Commission 13 October 24, 2006 Chair Miller: · Said that hearing that from one of the staff members, he felt they may need to add some language into the ordinance that says if a determination is made that the tree is a hazard, there should be something that states the removal ofthat tree will be done in an expeditious manner. Steve Piasecki: . Commented he had a similar experience with a 300 year old oak tree in another city, where the first arborist said it was going to fall, and advised removal of it. Three arborists' reports and three months later they still debated if it could be pruned, be propped up or some way to save the tree. It was in an area where it wouldn't harm anyone; so it was a different strategy to find out if it was necessary. There may be other mechanisms to explore. Chair Miller: . Pointed out that it was a good example, and said as noted in the language, it may not have to be taken down immediately, but at least should be roped off in such a way to ensure the public safety until it is taken down. . Asked for staffs comments on the suggestion for an exemption if solar energy was implemented. Aki Honda: . Said the issue was brought up at the City Council meeting in August and City Council gave specific directions to leave things the way they are and not to specifically address that. Com. Saadati: . Do you keep a list of all the protected trees; is there a database as we become aware of the protected trees. What about the ones in public places and in more open areas. Steve Piasecki: . A list is kept of heritage trees, but not one for all protected trees. There could be 20,000 citywide protected trees. . It was pointed out earlier, does this apply to the depths of someone's backyard. We haven't talked about whether you would want to make a distinction for that; whether it is publicly visible or not; some of these large trees are, they canopy above two story houses and if you look at your objectives in the ordinance, the purpose section talks about the canopy is just as important, whether they are visible or not; the canopy is important because it generates oxygen. . Commented that it was one of the hardest ordinances to craft in a manner that is fair and equitable. Com. Chien: . Relative to the proposed process, he asked staff what they currently do when somebody calls and says there is a tree in danger of falling. Steve Piasecki: . Said the cases he saw were indisputable. He said he personally went out and looked at the tree and declared it dead. One could even argue if a tre.e is dead, is it even a tree? If it is dead, it is a bunch of wood that is preparing to come down. He said he did not have any problems with the section. . There have been occasions where staff said to people that there doesn't appear to be dead or dangerous trees; the property owner would have to prove it to the city for staff to consider the Cupertino Planning Commission 14 October 24, 2006 evidence. The Commission could suggest that the City Council reduce the fees citing that there is some public objective and the public should pay for this and subsidize it. He said that the city has tried to go to cost recovery so that the public is not subsidizing someone's private interest; and it could be suggested. Com. Chien: · It is either the Director's tree removal or the Planning Commission tree removal. Steve Piasecki: · Typically it has been the first one; it has been clear and we have tried to be as flexible as we can to make reasonable interpretations of that. Com. Chien: . Questioned if the fees may deter people from following the law. (Staff responded that it does.) Com. Wong: · Asked staff to provide a breakdown of how the $819 fee was determined, and the $2536 related to the Planning Commission tree removal. . Requested that staff provide a walk through of an application beginning at their phone call; include the process and what fees are charged. Aki Honda: · Said that in Mountain View a tree removal request is done on a non- developmental related property, then it is free of charge; they have a community services forestry division that reviews a permit and makes a determination. If there is a development application involved, they are charged a $476 fee and it goes through the planning permit process for review. Steve Piasecki: . Said in Mountain View, the fees are lower because the public is subsidizing the process, and they have staff on hand providing the service to the public. . Said they could do that, but it is a subsidy; they are private interest in removing the trees that are being subsidized by the general public. . Said that it would be a tradeoff for Cupertino with other things that the Council wants to afford. The Planning Commission can make a general statement that you would like this to be user friendly and as inexpensive as possible and even if there is a small subsidy, that is acceptable. You and the Council would figure it out with all the competing priorities for the public's money and how it might be spent; you could just indicate your intent. I don't think the Commission is experts on the budget and can't become experts on the budget. Com. Wong: . It is cause and effect regarding educating and enforcement that we want, going back to the 10 inches or 8 inches, you want it to be uniform and clear, the same thing regarding the fees. Steve Piasecki: . Said it was a good general statement to make and staff could provide some detail on what goes into doing these things for a better understanding of why the fees are the way they are, but generally the Commission can say yes, we think this is a deterrent to people corning in, it is easier to chop the tree down or it might be an incentive here. Maybe some subsidy will help implement other public objectives for maintaining canopy in appropriate situations. Cupertino Planning Commission 15 October 24, 2006 Com. Wong: . Said he would like to explain to the public how the numbers were derived. . Asked that staff research the recent tree ordinance for deterrence for cutting trees down in the city of San Jose. Steve Piasecki: . Explained that San Jose is a charter city, with a due process that someone goes through before they can assess the fine. . Explained that Cupertino is a general law city and the due process for general law system is the court system. Eileen Murray: . Said that the city could establish an administrative process where it can be done in-house. Explained that charter cities are usually very large cities or very old cities that have adopted a charter which is usually more liberal than a general law city; it abides by the government code, and state statutes. Many were established before California became a state; some are more recent and have adopted a charter. Vice Chair Giefer: . Asked if there was a different structure for trees that are not dangerous or dead. (Staff responded that it was the tree removal fee) . Said it is not a per tree removal; but a per site fee, per application. If there are 15 oak trees and they are all to be removed, it is the same fee to pay as just removing one tree. It is very expensive to remove one and it is a bargain if you have a bunch of trees. Aki Honda: . Correct, unless for example there is 15 oaks and it takes more than $1,000 for the arborist to review and do his assessment of the trees, and we would ask for more. Vice Chair Giefer: . Is the homeowner made aware of that potential upside to the fee in advance or is it something they are advised of later, that there is going to be an incremental arborist fee for the tree assessments. Aki Honda: . Generally we need to fmd out first before we can ask to charge that fee, so we find out from the arborist beforehand and let the applicant know. . In response to Vice Chair Giefer's question if they have evaluated a per tree fee system, she said they have not looked at any particular fee system yet, and are waiting for direction from the Planning Commission. Vice Chair Giefer: . Said she would be interested in knowing what type of fees there were on a per tree basis, because if there is a single home owner, normally they want to remove one tree at a time. For a homeowner, it would be pricey to remove one tree; whereas for a developer it is not a bad deal. . Suggested a recommendation to understand better what other cities are doing for single tree removal. Cupertino Planning Commission 16 October 24, 2006 Aid Honda: · Said that Los Gatos' tree removal permit application is $120 for the first tree request removal and $60 for each additional tree. Chair Miller opened the public hearing. Jennifer Griffin, Rancho Rinconada resident: · She said as Cupertino becomes a more sophisticated city, and as the population increases, the expectation is that the ordinance will protect the trees in Cupertino. · She said that she was certain Saratoga, Los Altos, Los Gatos and Palo Alto have very good tree ordinances that protec.t trees on site; and she expected such a document to be of the same caliber in Cupertino. · She said it was very important to try to keep as many trees as possible, and if they do have to be removed, that they be replaced with appropriate trees to maintain the urban forest. · She reiterated her concern about ensuring that trees on lots where there is active construction, whether in a shopping center, RI area or around a business, that the trees are protected. · She said that people are building underground rooms in the Rl areas, and it was important to ensure that when building basements, the tree roots are protected. · She said many concerns have been expressed and she was hopeful that when the document when finished, it would be a model for other cities and for Cupertino too. Chair Miller closed the public hearing. Vice Chair Giefer: . Reiterated that she would like to know what other cities are doing fee wise for an individual homeowner to remove a tree vs. a developer. · Said that Chair Miller summarized her primary concern which is the fee structure needs not to be onerous; people should follow the fee structure and to make it tougher for them on the back end, either requiring tree replacement or fines. . Said she was concerned that they are not being equal on terms of removing privacy planting, trees or shrubs. It doesn't seem equal that if one is a misdemeanor and the other is not; there should be consistency in terms of what the fines are. . I would like to understand how we can catch up and somehow build a database of heritage and protected trees; it is not something we will do immediately, but maybe at the end of our deliberations, we make a commitment that we are going to start one, and we could put it online. . Relative to consistency, I believe we are noticing for home construction at 500 feet; this says 300 feet for tree removal so why not go the extra 200 feet and make it consistent with all our noticing. It might be something we should consider. · The fee structure is one of the key things and I would also look toward staff because it sounds like they have some strong opinions and some good experience that we can rely upon; what haven't we thought about, such as trees on common property lines; what things have we not even started to talk about that we are just missing that hasn't occurred to us as a Commission. I would appreciate those ideas as well, and I look forward to seeing where we come from both legally and recommended fee strictures at our next meeting. Com. Wong: . Said he agreed with most of the prior points. Asked staff to walk through the process of a tree removal, at both Director's level and the Planning Commission and how they derived at the fees itemized if they were to either keep the current fees or recommend to City Council to Cupertino Planning Commission 17 October 24,2006 lower it for one tree or a number of trees. · Said he wanted to understand the logic of the fee structure so that the people are encouraged to go through the process. · Relative to the canopy, the city arborist had a suggestion regarding the tree height; if you can recommend a suggestion instead of doing the canopy which was a Los Gatos plan. Aki Honda: . Asked if they recommended a tree replacement based upon the diameter at breast height. She said they could get those from the city arborist. Com. Wong: · The 500 foot notification of trees, if we can keep that standardized with all of our other notification to make sure it is standard. · Said he agreed with staff's suggestion to keep the diameter uniform, perhaps 10 inches; suggest they talk with the city arborist and decide what is uniform, so for both enforcement purposes and for educational purposes, for a lay person, I like what staff suggested, to do that too. . He referred to Chair Miller's suggestion about the exception process, and recommended that the five day notification language be put back in. . I understand that there is a difference between charter city and general law city and there was a suggestion of talking about an administrative process to make sure everyone has their due process and I am not sure if we want to go down the road of an administrative process or a fraction process, but I want some kind of deterrent; I don't feel comfortable going as far as a misdemeanor; I think a lot of folks are not educated enough regarding our tree ordinance, but I want to find some kind of mechanism, and as Steve said, don't push the process; let's take our time, but there has to be some way of a deterrent that will educate folks or motivate them to contact the city. . I know that we are going to work on a tree brochure; there has to be some mechanism if staff can make a recommendation through an administrative process or whatever the law says, if the law says that you can maximize up to $1,000 or $800, let's see what the max says before we fall into; we don't want to go to court because that is a very expensive process. Again, it goes back to my theme, education, enforcement and developing a policy that is user friendly, that is clear and that is uniform so that it may be a developer or an applicant or just a regular homeowner; how can we make this tree ordinance user friendly. Com. Chien: . Asked city attorney, you stated in your memo from last time that if we were to develop an administrative or civil tort procedure, one of the requirements is you need to have a body to hear the case. Could the Planning Commission be considered that body? Eileen Murray: . Cited a case, Haas vs. County of San Bernadino regarding the hearing officer in administrative cases, where they determined in that particular case that the hearing officer had a bias because he/she was an employee or part of the city government; whether a Planning Commissioner would be considered such is not known. . She said it was doubtful a Planning Commissioner could be a hearing officer because they are the decision makers regarding the ordinance in the first place, and wouldn't be considered unbiased that way. She said it probably would not be possible, but she would look into it. The Planning Commissioner is already the hearing officer relative to the permit process and the application process. Cupertino Planning Commission 18 October 24, 2006 Com. Chien: · Said he agreed with Jennifer Griffin, that the city needs to have more sophistication in the ordinance. In the past months there have been a number of cases where trees were cut and staff has been left to deal with it. The Commission as a whole has asked themselves why is it that there are repeated cases of people cutting down trees and then coming back to us. The problem was in the ordinance; it is not clear; the fees have a way of deterring people from following the law. Because there is a public interest, we have an interest to protect our suburban forest or urban canopy, and to the extent that there is that public interest, that means the public needs to start subsidizing and bringing those fees down to prevent getting the opposite effect. · In terms of the specifics, he said he felt they should look into the civil administrative procedure; either look at lowering the fees so that people are encouraged to follow the law, or if the fees are sufficient, then look at a civil procedure in which they can add on top additional penalties for those who chose not to follow the law. · The diameter at the breast height is a good idea; we need to change to that. The heritage tree process should be expanded and clarified; I am not sure that is done right now. Said he would like to see some data on code enforcement calls; having the number of calls relates to trees would be helpful data. The tiered system for fees is a good idea for one or many trees. · More public participation is needed. The tree ordinance is customer focused and similar to the Rl ordinance because everybody wants to improve their homes; everybody wants to cut a tree down. It has a component where the customers are forced to have to read the ordinance and it needs to be clear to them. He proposed that a brochure or self-help guide be created with photos of the protected trees and layman's language so that the community members could understand it. . Said he was not convinced that it needs to be uniform diameter, since there are only a few protected species; it is not too hard to process for code enforcement. Dangerous trees that are cut and therefore need to come back for a permit; that has been taken out of the current ordinance, I am not sure the rationale is; I would support adding it back in. . Relative to the tree management plan suggested by staff, he said he was not convinced about the idea that homeowners should have to get their architect or an arborist to develop a management plan for their landscaping. He said it felt like an extra layer of bureaucracy at this point. Steve Piasecki: . Clarified that it was not a mandatory requirement, but an option that people can utilize in the future. With an approved landscape plan, if they had a management plan 10 or 20 years later, they wouldn't be charged anything to thin the forest, vs. coming back through the process for every tree they want to remove now, that was over-planted 20 years earlier. It is an attempt to provide a mechanism that it becomes automatic if they identify it up front and it is an available option. Com. Saadati: . Felt that simplification would have better results as far as the guidelines; diameter would work best. San Jose has similar guidelines which would be good to check. . Stated that he would like a count of how many unauthorized trees have been removed over the past years. . Supported the concept of a brochure that could be handed out at libraries and other local businesses. . Relative to the arborist's opinion, it should be noted in the ordinance that if the arborist is in the tree removal business, caution should be exercised about getting their opinion, because of Cupertino Planning Commission 19 October 24, 2006 potential bias. . For heritage trees, he suggested putting signs in the ground, with some information about the tree with contact information. . Supported hefty fines for companies that remove the trees unlawfully. . Need to be able to address homeowners who many years ago planted many trees in their yard and they want to remove one or two. Is it fair to not allow them because they are being penalized for a good thing they did in the past. . Look at trees in the city streets and how to add more trees, and if it could be part of this ordinance or not and consistency as far as the species of trees. . Simplify the fee structure to have something pertaining to multiple trees vs. individual trees. Steve Piasecki: . Said the irony is you may have somebody that has 10,000 square foot lot and they have a lot of trees; while they are providing the canopy; there may be someone with an equivalent sized lot with one tree, so you may want to provide mechanisms where it is more flexible. Com. Wong: . He asked staff to provide a sample of an Rl, recording the deed, what would it look like; is it under a title report or what is that mechanism; is it user friendly or not. . Relative to Com. Chien's comment about code enforcement, he said he was not sure it is more useful to have code enforcement do a report to the Commission or to have a code enforcement officer come to a public hearing and tell their experiences about enforcement. . He also recommended that the city naturalist do a report or come to a Commission meeting to see if there are any questions. He said that a conflict existed from the last meeting on what the city naturalist was saying and he felt they could get both the city arborist and the city naturalist in to see the difference of opinion. . Also going back to public outreach, is tree services company. What have their experiences been in other cities where their experiences here in Cupertino; how can we make it user friendly, clear and concise. . Relative to Vice Chair Giefer's comment about adding more trees to the protected lists, he said they could discuss it now or at the next meeting, but he preferred having the city arborist and city naturalist here to have that discussion, because of the many different thoughts on that. Chair Miller: . Said he would like to see the exception process tightened up, and also some clear guidelines of what someone does or doesn't do if a tree is determined to be dangerous. . Agreed that the fee structure needs to provide more of an incentive for people to come in when they want to remove a tree, not after they have removed it. . Said he supported the diameter measurement and also using a uniform diameter as staff suggested. Also supports staff s desire to provide an easy mechanism for thinning out trees or groups of trees that have been deliberately over-planted to get a rapid growth early on. . Said that since energy prices have escalated and continue to escalate, and solar is becoming a very competitive way of providing energy, consideration should be given in the ordinance about allowing some flexibility in those instances where rooftops are covered by tree cover. . He discussed the distinction between front yard and rear yard. He said a rear yard is something that is a more private area, and the homeowner should have more flexibility in their rear yard. The front yard is an area more public and consideration may be given to treating those differently. Cupertino Planning Commission 20 October 24, 2006 Vice Chair Giefer: · She said that since the change in the fee schedule in 2004, it would be helpful to know the data in terms of how many tree removal requests there were prior to that change vs. after the 2004 fee change; and how many retroactive tree removal permits were requested, both before and after that. It would provide a clear indicator if people were saying the fees are too high, and they will beg for forgiveness later. Com. Chien: · Relative to the noticing issue, he said that using the Scene would be advantageous, and that everybody affected by the ordinance should be notified. · Said he would also support a mailer being sent to the community members. Com. Saadati: · Said he agreed with the use of the Cupertino Scene to inform the community about the meeting; and noted that the entire city was noticed for the last meeting and people would get schedule information from the website and would attend the next meeting if interested. Com. Wong: · Suggested a press release be done to all the publications, such as Cupertino Courier, San Jose Mercury News, and Rural Journal. He asked what the cost of the post card notification was. (Response: $5,000) Steve Piasecki: · Said an advantage of using a Scene article is that it allows prompting of some of the potential questions; what kind of trees, what is considered a heritage tree, questions to peak the community's interest and bring them a more educated viewpoint; so that they have thought through some of the questions. Chair Miller: . Suggested using an article in the Scene and sending notices specifically to the persons who spoke at the meetings. He noted that there was a low speaker turnout despite the notification sent. Vice Chair Giefer: . Suggested also using the email notification list available. Motion: Motion by Com. Wong, second by Com. Saadati, to continue Application MCA- 2006-02 to the December 12, 2006 Planning Commission meeting. (Vote: 5-0-0) OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION ENVIRONMENTAL REVIEW COMMITTEE: No meeting held. HOUSING COMMISSION: . Com. Wong reported that the meeting time was changed to 9 a.m. · He reported on the presentation about the special needs groups in the community. Cupertino Planning Commission 21 October 24, 2006 MAYOR'S MONTHLY MEETING WITH COMMISSIONERS: . No meeting held. ECONOMIC DEVELOPMENT COMMITTEE: · Com. Chien reported that the pipeline of development projects was available on the city website, to view the development reports of anything in the pipeline, and anything under construction or nearby completion. · There was also discussion about the Vallco garage which has been approved to go beyond 32 feet. . There was some discussion about the upcoming Measures D and E. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT; . No additional report. ADJOURNMENT: The meeting was adjourned to the next Planning Commission meeting on November 14,2006 at 6:45 p.m. in the Cupertino Community Hall. SUBMITTED BY: Elizabeth A. Ellis, Recording Secretary