Attachment 51
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Community Development
Director:
Planning Manager:
Town Attorney:
Transcribed by:
Kendra Burch, Chair
Mary Badame, Vice Chair
Charles Erekson
Melanie Hanssen
D. Michael Kane
Tom O'Donnell
Joanne Talesfore
Laurel Prevetti
Joel Paulson
Robert Schultz
Vicki L. Blandin
(510) 337 -1558
ATTACHMENT 5
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P R O C E E D I N G S:
CHAIR BURCH: We are now on Agenda Item 4. Agenda
Item 4 is a public hearing to consider adoption of
amendments to Chapter 26, Trees and Shrubs; and Chapter 29,
Zoning Regulations - Tree Protection, of the Town Code,
Town Code Amendment A -14 -002.
Are there any disclosures by a Commissioner for
this item? Seeing none, Mr. Kass, I understand that you're
going to be giving us a Staff Report this evening.
BOB KASS: That is correct.
CHAIR BURCH: Great. Go right ahead.
BOB KASS: Thank you. I'm Bob Kass; I'm a Special
Projects Manager with the Parks and Public Works
Department. Thank you for your time and consideration of
this item.
Tonight you have before you consideration of
Amendments to Chapter 26, Trees and Shrubs, and Chapter 29,
the Tree Protection Ordinance, of the Town Code.
In your packet you have a Staff Report that
details many of the changes recommended by Staff. You also
have redlined versions of Chapter 26 and Chapter 29. You
have some excerpts from the Parks Commission, which did
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review our proposed changes. You have a listing of recent
tree appeals, and you also have Resolution 2009 -082, which
was the adoption of the Master Tree List.
I also do want to make reference to the Desk Item
which Mr. Paulson commented on at the beginning of the
meeting a couple of hours ago, I guess by now, and just to
remind you that we did receive two comments from the public
after the packet had gone out, and you have that Desk Item
before you.
So to jump into it, I have a very short
presentation to highlight the proposed changes and
recommended changes, after which I'm available to answer
questions. Again, also here tonight to assist me if I can't
answer those questions is our Parks and Public Works
Director, Matt Morley; Steve Regan, the Public Works
Superintendent; and Rob Moulden, the Town Arborist.
So without further ado, and with that little
introduction, we'll move forward.
Just as a little bit of background, the current
ordinance was adopted in 2003. It was the result of a real
revamp of the 1984 Tree Protection Ordinance and it was a
fairly substantial change in the ordinance, and that has
been guiding us in dealing with tree removal since 2003.
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This past year the Council adopted a strategic
goal for 2014 -2016, establishment of a Heritage Tree
definition, and also they asked that we update the 25%
restriction on the amount of pruning that could occur on a
tree within the context of the existing code.
In addition to that, Staff felt that it was
important to use this opportunity to help provide some
clarity to Staff and the Commission regarding when we issue
permits and the guidance we might have, and I think that's
one of the driving factors to do a little bit more broadly
than just look at the Heritage Tree definition and the 25%
pruning regulations, and that's why we address such things
as the Standards of Review and the required findings, which
I'll touch on, but this is the result of a number of
appeals that have come to the Commission over the last
couple of years.
To jump right into it, the proposed changes to
Chapter 29. I have copy of the PowerPoint here, so that's
why I won't turn around and look hopefully too much. Just
want to make sure I have the right slide.
I'm going to go through these fairly quickly and
we'll move to questions, because I'm sure you have. This is
Is fairly meaty item, so I'm sure you'll have a number of
Iquestions regarding some of the proposed changes. But just
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1 Ito go through this in an overview fashion, we've added
2 specific pruning standards and specific language regarding
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pruning.
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We have revised the 25% pruning limitation to be
a cumulative three -year. Previously it was we wouldn't
allow pruning of more than 25% of the tree in any one year.
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The concern was that somebody could come in the next year
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and do 25%, and the next year and do 25 %. We've said it's a
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to rolling cumulative three -year period.
11 We've modified the definition of diameter to be
12 consistent with the industry standard, which is the
13 International Society of Arboriculture. Most other cities,
14 it's diameter at breast height, which for me is here, I
15 think for Laurel it's about here, but for most people it's...
16 Oh, it's there? Okay, for me it's here, for Laurel it's
17 here. It's about 54 ", or 4.5', and that's the industry
18 standard for most arborists and most reporting does that.
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We've added what is really a pretty significant
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addition to the code, a definition of Heritage Tree, and we
did a fair amount of research in coming up with this. A
number of communities have a very narrow definition of
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24 Heritage Trees, and it's a significant tree that's
25 designated by a commission or the Historic Preservation
Board, and there may be, like in Palo Alto, one or two
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specific trees. Based on the kind of direction from
Council, we've broadened this to be significant trees that
make a major contribution to the fabric of the community,
and that definition is any oak, California buckeye, cedar,
redwood, or Pacific madrone, and these are some significant
natives that are 24" or greater in diameter become a
Heritage Tree, or any other species 48" in diameter or
greater.
That means that we're adding this whole category
in there —and we'll discuss this in a little bit —of an
additional review process and additional noticing process
with those more significant trees, and really, that's I
think one of the things that existing code has lacked is
the public outreach on noticing aspects of a potential tree
removal, and it's specifically with the more substantial
and significant trees.
The Heritage Tree definition also requires that a
pruning of Heritage Tree of a branch that's 4" in diameter
or greater would require a permit as well, and again,
that's to address the issue of a large maybe backyard tree
that provides significant contribution to surrounding
residents or neighbors. If you're going to take and whack a
16" or an 8" or even a 4 ", it's a fairly ridged standard
that's going to require a permit as well.
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I Continuing with some of the changes to Chapter
2 29, we as you can see in the report and in the redline,
3 we've updated the tree canopy replacement standards. Part
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of it is just clarifying some of the numbers and ranges
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that were not really that clear in the old code.
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But perhaps the most significant thing is that
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we've added two components.
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9 One is that we're encouraging replanting with
10 native species where appropriate, and also referencing the
11 Hillside Development Standards.
12 Secondly, we now have a replacement option for
13 single - family residences under 10,000 square feet to
14 replace trees removed with a 15- gallon tree instead of the
15 24" box tree. The reason we did that is because we really
16 want to encourage people to replant trees on their
17 properties and the existing code had a fairly difficult
18 standard for folks to do that replanting perhaps on their
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own and maybe people were just opting to pay the in lieu
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fee and not replant on their property, so we want to
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encourage people to plant the trees back on their property
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and hopefully maintain that canopy in the same location
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24 where that removal may have occurred. So that's a new
provision.
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We also, of course as I mentioned, have revised
and clarified the Standards of Review and added a whole new
section with required findings. So if Staff is reviewing,
or the Town Arborist, Rob Moulden, is reviewing, a permit
application, he's going to be required to make a specific
finding, a required finding, before approving a permit. If
an appeal comes to the Commission, there's a broad standard
of review that you look at and you consider kind of
holistically, and then if you're going to grant an appeal
or grant a removal request, you can make one or more of
those specific findings. So I think it will help clarify
how the code is to be used by the Commission and Staff in
their deliberation review of permit applications.
We've included a list of, I don't think we
specifically call them "nuisance trees" in the ordinance,
but these are trees that we are now allowing to be removed
without a permit. The list was developed in consultation
both with Staff as well as our consulting arborist, Deborah
Ellis, who has been before the Commission on a number of
occasions, and the six or seven trees are listed here:
Black Acacia; Tulip Tree; Tree of Heaven; Blue and Red Gum
Eucalyptus, which are really the most invasive and most
challenging trees in our area; Palms, except for Canary
Island Palms; and Privets. Those can be removed without a
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I (permit as long as they're less than 24" in diameter. So a
2 giant Eucalyptus tree of 4 -5' in diameter would, if it were
3 over 41, become a Heritage Tree, so it would require some
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noticing. Those larger trees of these species still require
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a permit for removal.
That's it for Chapter 29, so I'm moving along
pretty quickly here.
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9 We also have proposed changes to Chapter 26.
10 Chapter 26 is not technically part of the zoning ordinance,
11 so it is not directly under the purview of the Planning
12 Commission, but it's related and we felt it was important
13 to bring these things forward. Part of it is that we wanted
14 to make sure that the public trees along our public rights-
15 of way, and our review and authorization to remove those
16 trees, was subject to the same Standards of Review and
17 findings that the private tree removals were. We wanted to
18 make sure that we were conforming basically to the same
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guidelines that the private tree removal requests were
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being required to follow.
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We're recommending retitling that chapter from
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Trees and Shrubs to Public Trees to make sure that it's
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24 clear that we're really dealing with trees.
zs We've added the Standards of Review and we've
added required findings to mirror Chapter 29. We've
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eliminated a detailed Master Tree List, and again, the
existing code has... The Master Street Tree List, and this is
for street trees; it's not for private trees. We don't have
a specific list of trees that people can and cannot plant
on private property. We do have a list of trees that can
and cannot be planted on adjacent and public rights -of -way.
But the code provides for updating that with a resolution
of the Town Council, which was attached, the most recent
one that they did, for not having to constantly go back and
change the Town Code every time we find or decide to add a
tree or remove a tree from our Street Tree List, we want to
just allow that to be done by resolution and not require a
modification of the Town Code.
We've added a provision for a more lenient
removal of Liquidamber trees. These are also known as Sweet
Gum, or as my kids like to call the two out in front of our
house, sticker ball trees, and I think we're all quite
familiar with those. Many communities have started programs
of reforestation, recognizing that they are just not a
really appropriate tree for a street tree.
We've clarified within the code that we can
remove street trees that are interfering with utilities,
public improvements, sidewalk, curb, and gutter, et cetera.
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We've strengthened replanting requirements. We
ladded that in an approved capital project a street tree
(might need to be removed if we do a new traffic signal or
1we do some modifications of streets.
And lastly, we've eliminated a section in
Idiscussions with the Town Attorney, the Community
Development Department, and Public Works, which is this
large scale planting. No one seems to have any clue why
that was in the code. It seems to be an old aspect of
Chapter 26 where if there was a subdivision the developer
would pay the Town and the Town would plant all the trees
in the subdivision. What we do, and I think the Commission
is well aware of it, is that we require public street tree
planting as part of the Conditions of Approval and the
develops are responsible for doing that. So that section
really has not been used for years and it was not one that
has consistency with the way we deal with street trees
through the development process.
Just to sum up the recommendations before the
Planning Commission, you have before you required CEQA
findings, as we typically do in items like this; required
General Plan consistency findings; and then we're asking
that you forward a recommendation to the Town Council for
adoption of the ordinance amendments. We are providing
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recommendations for suggested alternatives, and that would
be that you could forward a recommendation to the Town
Council for adoption with modifications or additions, or
you could continue the matter to a date certain with
specific direction.
That's the brief presentation. I will answer any
questions that you might have. Thank you very much.
CHAIR BURCH: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I want to compliment you
on your presentation; it was very good, thank you.
In your work, when you looked at Heritage Trees,
I think you've indicated to us that people handle that
differently in different places. Can you give me some sense
of feeling with our neighbors, like Saratoga, Monte Sereno,
Campbell, San Jose, is there any pattern that people follow
in those areas that follow our suggestion on the definition
of a Heritage Tree?
BOB KASS: A more common use of the word Heritage
Tree is really for a designated special tree that has
significant historical or biological contribution. In
Campbell, for example, a Heritage Tree is the one that
Teddy Roosevelt planted in front of the community center. I
know Campbell, because I worked there for 23 years, so
that's part of the reason I picked that as a best example.
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A Linden tree that was planted in the 1940s by the Slavic
Association or something.
Most communities use that term Heritage Tree to
refer to a specially designated tree that goes through a
process, like a historic landmark. That's how Palo Alto
refers to them. That's how Campbell does. Saratoga, I
believe, also has a Heritage Tree designation, and they
have the one that's kind of at the entryway to Highway 9;
they have like three Heritage Trees. Most communities have
a tree protection ordinance that does have thresholds such
as 12". Saratoga actually has a more ridged; I think theirs
is 8" is the standard of which all trees are required to
have a removal permit.
So we looked at these and discussed with Staff
what felt right for the community and tried, I don't want
to say guess, but to glean from the Council and the
community noticing process what trees were at that level
where we really wanted to have more noticing. So even
though we call them heights, what we really have done is
we've said there are a number of types of trees and size of
trees that we ought to be noticing folks about if they're
proposed to be removed, and that's where we ended up. I
don't know if that answers your question.
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COMMISSIONER O'DONNELL: So your intention,
notwithstanding what our neighbors are doing, is really
just to bring in the noticing requirement? In other words,
you could have done this by simply saying a Protected Tree,
but instead of merely being a Protected Tree it is a
Heritage Tree, and when it becomes a Heritage Tree, then we
have noticing requirements?
BOB KASS: That's correct. Again, the direction
of the Council was come up with a Heritage Tree definition,
so it was latched onto as Heritage Tree and we started to
say what does Heritage Tree mean? We saw that in some
instances there were Landmark or Heritage Trees that were
just large, and they were more protected than Protected
Trees.
The other thing we didn't want to do is we didn't
feel it was necessary to do noticing for every tree that's
a Protected Tree, because that goes down to the 12" tree
that Rob deals with on a regular basis where there really
is not the likelihood of much community interest as with a
very large tree or a tree of a specific variety, so that's
why we ended up with that.
COMMISSIONER O'DONNELL: Final question. Noticing
requirements, if I recall correctly, are basically you're
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1 going to notice the people across the street and I guess
2 your immediate neighbors, is that right?
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BOB KASS: Correct.
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COMMISSIONER O'DONNELL: The appeal process, on
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the other hand, is not limited to anybody, I guess. It
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certainly isn't limited to a resident of Los Gatos; it's
any —I don't know what the term was — interested party, or
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something like that. But it has no limitation on who can
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10 appeal, no showing that they are affected by the decision,
11 just a wide -open appeal. So if somebody living in San
12 Francisco wants to appeal something here?
13 BOB KASS: That's correct.
14 COMMISSIONER O'DONNELL: Is that generally what
15 lis done?
16 BOB KASS: I believe we actually had that
17 discussion with the Town Attorney, and that is correct. I
18 mean if it gets appealed, anybody. It could be Friends of
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the Redwoods decide they want to appeal every redwood tree
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that's going to be proposed for removal anywhere in
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Northern California, and they certainly have standing and
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ability to appeal that. They don't have to be a resident,
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24 they don't have to be immediately affected; there are other
25 reasons why they may want to appeal and we have to accept
that. At least that's what the Town Attorney told me.
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Thank you.
COMMISSIONER O'DONNELL: We'll talk to him later.
CHAIR BURCH: Commissioner Talesfore.
COMMISSIONER TALESFORE: Thank you. And thank you
very much, your presentation just synthesized everything
down to these few pages, so I appreciated that.
BOB KASS: Thank you very much.
COMMISSIONER TALESFORE: Getting back to the
Heritage Tree and then the Protected Tree, is there a
difference?
BOB KASS: Yes. The existing ordinance, Chapter
29, the Tree Protection Ordinance, establishes a category
of trees that are Protected Trees. That has existed since
maybe 1984, but certainly since 2003, and the Protected
Trees are any tree 12" in diameter or greater on developed
single - family residential property; any of four categories
of slow - growing trees on residential property of 8" in
diameter or greater, and I think it's a couple of oaks and
a couple others; and any tree 4" or more in diameter on
commercial or undeveloped property or public property. So
those are all currently Protected Trees.
But again, under the existing code you have to
get a permit to remove any of those trees, whether it's in
conjunction with a development application or it's a
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resident or office building that wants to remove a tree,
you still have to apply for a permit. We have never had any
kind of public noticing aspect to a proposed removal, and
so what we said and what we looked at is we said the issues
that the Commission has had to deal with oftentimes result
in neighbors or affected people not being aware that a very
large tree might be removed. We thought we could make that
adjustment by creating this new category of Heritage Tree,
which were larger, more significant trees, and having that
category be one that went through a more ridged process for
noticing. Does that answer your question?
COMMISSIONER TALESFORE: You know, you have your
heights and then you give examples of the California
Buckeye, the cedar, and the oak, and I thought in Los Gatos
the oak tree was the number one Protected Tree.
BOB KASS: So understand that any oak of 12" or
greater is protected on residential. If it's two certain
types of oak and it's 8" or greater, it's protected,
meaning you have to have a permit to remove it. It's just
that once it gets to 24" inches under this proposed
revision, then if you want to remove it, we're going to
notify the folks around you.
COMMISSIONER TALESFORE: I see.
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BOB KASS: Currently we don't do any noticing for
tree removals. Current code doesn't require any noticing
for tree removal unless there's an appeal that might occur.
How does someone find out about that? It's usually the
applicant; it's not usually an adjacent property owner.
COMMISSIONER TALESFORE: I look at this list and I
can agree with most of it. The one that pops out to me
though is the redwood tree, because sometimes that's the
one that comes before us a lot, because it causes the
damage of the sidewalks and driveways and whatever else.
There are other trees too, but this one in particular only
because a redwood tree is a forest tree...
BOB KASS: Correct.
COMMISSIONER TALESFORE: ...and a lot of times
people use it as a screening method, and the end result is
that it screens for a while, but then the tree grows to be
60' tall and you have a big trunk, and the branches are... Do
you know what I'm saying?
BOB KASS: I know, and in fact you'll probably be
hearing another appeal of a redwood tree shortly.
COMMISSIONER TALESFORE: So I'm curious why it
was clarified as a Heritage or Protected?
BOB KASS: A redwood tree currently is protected
on residential property if it's over 12 ". It's protected on
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commercial property if it's over 4 ". So anybody that wants
to remove a redwood tree under the existing ordinance has
to get a permit.
Now, if I had a 100' tall redwood tree that was
12' in diameter on my property today that was affecting my
structure, I could apply for a permit and we could grant it
and it could be removed. What we're saying with including
it is redwoods, yes, they're forest trees, but we're kind
of up against the Santa Cruz Mountains. They iconic,
they're really identified with Los Gatos High School and
the downtown, and people do plant them in the wrong places.
We just want to add that component of public noticing to
the removal of some of these large, stately redwoods along
with some of the other trees, and cedars are in the same
category.
CHAIR BURCH: Commissioner Kane.
COMMISSIONER KANE: Thank you for your report,
Mr. Kass. It's excellent and educational. It took a while
to read it; I learned a great deal.
BOB KASS: Thank you.
COMMISSIONER KANE: With respect to preserving
and protecting, I can understand oak, cedar, and redwood. I
don't know why you'd want to protect a buckeye. I'd just
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box them up and send them back to Columbus. Can we discuss
modification of this list?
BOB KASS: I heard some gasps behind me; I didn't
turn around. The buckeye, like any other tree in town, is
protected if it's 12" on residential or 4" on... Is it a
slow - growing one? It's not on the slow - growing list, is it?
It is, so it's 8 ". It's 8" at residential, because it's a
slow - growing. But a buckeye, at least in my discussions
with Staff and also our consulting arborist, is considered
a significant native tree that has some significant
contribution to the habitat, and that's why it's on the
list.
COMMISSIONER KANE: (Inaudible) a terrible thing.
Do we have any wolverine trees?
BOB KASS: Do we have any what?
COMMISSIONER KANE: Wolverine trees.
BOB KASS: Wolverine trees?
CHAIR BURCH: Mr. Kane.
BOB KASS: I'm not familiar with what a wolverine
tree is.
COMMISSIONER KANE: Thank you very much.
CHAIR BURCH: Commissioner Erekson.
CHARLES EREKSON: I have a series of questions to
help. In the definition the proposed (inaudible) trees, are
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all the species that are designated native trees to this
location?
BOB KASS: Well, redwood is not a flatland
native, but it's a native of our area. Cedar is not really
a native tree. I'm looking at Rob. Cedar is on that list.
Yes, over 24 ". So cedar, I don't believe, is a native. I
mean cedars I think are from Lebanon or the Himalayas. So
cedars are not natives, but they've been planted, they're
large, they're significant trees, so we added that. There
have been a couple of significant cedars that have come
before the Commission. Oaks clearly are natives, and then
we have the buckeye and the madrone, which are natives.
CHARLES EREKSON: I'm trying to figure out which
direction to go, because I'm eventually going to go in two
directions with the questions about Heritage Trees, but let
me stay with this train of thought.
One of the things that we do as people is we
intrude on the natural ecological system that was created,
and some people do that unintentionally in their homes.
They plant trees which would never have grown in a
particular area, and if left alone for enough of a period
of time many of those trees would grow large enough to
become protected. But we're then imposing something on the
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environment, and then we're protecting what we've imposed
on the environment.
I think I understand. I've been on this
commission long enough to have sensitivity to why you
probably came up with this definition. My sense is this is
a political definition more than it's something that would
reflect a responsible way to respond to what should be
planted and what should be protected if I look at it from
an ecological or environmental standpoint.
That's one kind of comment about the definition
of Heritage Trees. Related to that, a question is when you
had the opportunity to look at these two ordinances did you
give any consideration to having a clearer definition of
native trees, and to granting specific protection to native
trees, and creating incentives and rewards for both the
developers who are developing commercial properties and
individuals who are "developing" residential properties, to
plant trees that are more compatible, so therefore native
trees to the natural environment, as opposed to us
codifying things that are intrusive to the environment?
BOB KASS: I guess I have two responses to that,
and then I'll see if Joel wants to add anything.
I think it's important to remember that this
ordinance is really geared towards protecting the existing
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lurban forest. It's not an ordinance and it's not part of
what we were trying to look at to deal with how we
regulate, incentivize, or determine what kinds of trees get
(planted in new development or existing development. I think
it's important to separate those two and understand that
what we're responding to from the Council's direction and
from generally the feedback we've gotten were the result of
items that have come to Commission, is how do we deal with
our existing urban forest whether we like the trees that
are planted there or not, whether we like eucalyptus trees
or not?
A eucalyptus tree is the best example,
Commissioner Erekson, of what you're talking about. They
are not a native species, they have very a significant and
sometimes negative impact on natives, and they're
identified as a fire hazard, but they are iconic with
certain parts of the Bay Area, and there are some
spectacular eucalyptus trees. Yes, they're nasty and messy
and they don't allow undergrowth, but to begin a process to
say that... A number of communities have gone through very,
very difficult processes to look at removing large stands
of eucalyptus trees. I think that's the best example of
ghat you're saying, that there are trees in our environment
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that are planted and are not appropriate to the
environment.
As far as the incentivizing, we have the Hillside
Development Standards that do encourage native planting in
the hillsides, which is really the area that is exactly
what you are talking about much more than the flatlands. I
believe we have water efficient landscape standards that
all communities are required to adopt that try to get folks
to plant more drought tolerant and water efficient
landscaping materials.
But beyond the fact and the acknowledgment that
we have some of that existing stuff in those areas, no, we
did not really look at is this review trying to regulate
the types of trees that are planted? Joel or Laurel, I
don't know if you have anything you want to add to that.
LAUREL PREVETTI: I'll start, and Joel can
probably finish. I was just looking at our General Plan,
and the General Plan has a lot of goals around the natural
environment here in town. There is one goal in particular
that already addresses the preservation and protection of
native plants and plant communities in the Town and
promotes the appropriate use of local native plants and
habitat restoration and landscaping.
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So that's one of many overarching goals, and then
it goes through a variety of policies that help us guide
development and other changes, including the use of native
plants on Town properties, et cetera.
But we also have recognition of protecting soil
resources and water resources, and as we know, our trees
are really part of that larger ecosystem, so what this
ordinance was really trying to do was to dive down a little
bit deeper in terms of the details. How do we actually
implement something that's workable both for the
Commission, since you see so many appeals, as well as for
Staff?
It's certainly possible that the Commission could
recommend that the definition of Heritage Tree include oak,
buckeye, madrone, and whether you have comments on redwood
and cedars, that could be a comment that you have. Because
of the location of the Town, we have so many different
ecosystems. We have oak woodland habitats, we've got
riparian, some of our properties are starting to get into
forestland, and so if you do have comments, these are the
kinds of comments the Council would be interested in.
CHARLES EREKSON: I guess I would just follow up,
Chair Burch, so I'm going to talk two ways.
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I'm very familiar with the portion of the General
Plan that Ms. Prevetti just cited; that's part of the
origin for me asking the question, because there will need
to be a required finding that is consistent with the
General Plan. Part of why I was probing is it's not clear
to me, given my sense of the General Plan, with trees that
are non - native being given sort of particular Protected
status. Is that really consistent with the intent of the
General Plan? I'm not expressing an opinion; it's just a
question. That was part of the question, and then back to
VAMIJ
I understand about trying to protect the current
Town forest. I guess I worry about the fact that we can be
too shortsighted, because my sense is that policies and
ordinances should look at the long term, and they should
also help us respond sometimes, so if we've made mistakes
in the past, enable us to correct those mistakes and more
align things, and not protect mistakes that have been made
in the past.
The fact that one may have planted non - native
trees, if you were pursuing that logic, in the area and
they became big doesn't mean that for the next 200 years we
should continue to perpetuate that mistake, or for the next
100 years for some of those trees; trees all have life
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sizes. I guess while I understand what you said, it seems
like to me I would want us not to be too shortsighted, and
to look at the long term, and not just to say we're at some
magic moment in 2015 and this is the desirable kind of
forestation in this town at this moment and we're going to
protect it because we're writing this ordinance in 2015. If
we had written this ordinance in 1892, we might have
protected different trees.
BOB KASS: If I may, Chair, respond to a couple
of things?
First, the current ordinance protects all trees
on residential, 12" or greater. It doesn't matter what they
are, it doesn't matter when they were planted, and 4" or
greater. So nothing we're doing here is really protecting
more trees, it's really just laying on a noticing process
for some significant trees. Whether we like them, or you
like them, or I like them, it's laying on this public
noticing process, which we think is a good thing in
response to some of the issues that we see.
Secondly, nothing in here prohibits us from
granting a removal permit of a eucalyptus or a cedar or a
redwood, or some other invasive tree, if it meets any of
the required findings, and one of those findings may be
that it has an impact on a more desirable native species,
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or it's affecting the economic utility of the property
disparate than what the neighbors are.
A good example is let's say you want to landscape
your back yard and you want to put a swimming pool in
there, and or you want to put in some raised vegetable
beds. Under the current code we really don't have the
authority to approve a removal of a large tree in
somebody's back yard that they may want to re- landscape and
put in a pool or put in some raised vegetable beds.
Under the new one you at least have this ability
to find that we're encumbering that property differentially
from an economic... Hey, my neighbor can put in a swimming
pool. I happen to have this redwood tree.
Now, it's not just oh well, anyone who wants to
put in a pool could put in a pool because of the other
issues that you look at: the type of tree, the size of the
tree, the species, the character, et cetera, but it at
least allows a finding that would allow you to do that, so
we think we've come up with a good balance.
I do understand your comments and I think they're
good ones. I think that may be another issue that's like
the next phase of looking at how we manage our urban forest
and what's the way to move it forward in a more harmonious
and environmental manner?
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CHARLES EREKSON: Can I ask one follow up
question, and then I've got a different topic to ask a
question about?
So let's say, you pick the non - native species
that I have a big tree in my back yard, hypothetically a
madrone, let's say, for example.
BOB KASS: That's a native. You wanted a non-
native. Okay, eucalyptus.
CHARLES EREKSON: Okay, eucalyptus. I've got a
big eucalyptus tree in my back yard, and it's Protected,
because it's grown to a certain size. Let's say I want to
be a responsible homeowner, and it's far enough away from
my house that it's not causing any damage, and I want to
take that tree out and I want to replace it with two oak
trees. Because I want to be responsible I want to replace
an undesirable, non - native tree with two, three —I don't
know, you tell me how many I need to —so I will be
responsible and be consistent so that long after I'm not
here those trees will be complementary to the environment,
not intrusive on them.
My sense is, from talking with people in town, it
would be pretty impossible for that to happen now, and I
don't know that this language allows that to happen. Maybe
that's not the intent of this.
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BOB KASS: I'm just scanning the required
findings. I think that's a really good point. I'll defer to
Rob, but there are some findings that you could maybe make
that would allow you to do that. But interestingly, in
Chapter 26 we have a specific finding that says that the
removal of a tree to be replaced with a more suitable
street tree, canopy tree, is one of the findings we can
make, and the example there is, let's say, you have a
street that has a bunch of large sycamores or nice Chinese
Pistache canopy trees, and somebody has a healthy Crepe
Myrtle in their park strip. The current code doesn't allow
us to remove a healthy tree, even though it doesn't
contribute to the canopy of the street trees. Under the
finding that we added in Chapter 26, we said you could do
that.
So your point might be that it may be desirable
to add an additional finding that would allow for removal
of a non - native and replacement with natives, or some kind
of thing like that, and I think that's a very legitimate
comment to make, that we don't have that currently explicit
in the required findings. Does that answer your question?
CHARLES EREKSON: That seems a reasonable
response. I think you understand what I was trying to get
at.
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BOB KASS: Hopefully I did, and I do understand
Ithat.
CHAIR BURCH: I think that we should pause and
allow for the public speaking —we have a couple of cards —and
then we can come back and complete our dialogue. Is that
all right? We have lots of conversation still.
BOB KASS: That's great with me. I could use a
ldrink of water.
CHAIR BURCH: Okay, great. All right, so we are
going to open up the public portion of the hearing. You'll
have three minutes to speak. Please make sure you state
your name and your address for the record. David Weissman.
Mr. Weissman, make sure that microphone is pulled right up
in front of you so that we can hear you.
DAVID WEISSMAN: Dave Weissman, Francis Oaks.
Staff has submitted a proposed draft to improve
the Tree Protection Ordinance. I think this process so far
is just about perfect since Staff's proposals deal almost
exclusively with those trees not in the hillsides. These
are the issues that Staff has the most experience and
exposure to.
Now, I suggest that those parts of Chapter 29
that deal with the hillsides be turned over to a small
committee of Los Gatos citizens that have biological
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expertise that may not be present on Staff and where they
can have an effective input. The committee could be chaired
by Bob Kass and would go specifically to some of the
questions that Commissioner Erekson has brought up.
You can see the dichotomy here between talking
about trees in the flatland and talking about trees in the
hillsides. They need to be dealt with separately. The
environments are just too different.
And the California Buckeye, Mike, is a native
hillside tree.
COMMISSIONER KANE: I will learn to love it.
DAVID WEISSMAN: Would such a process be
precedent setting? Absolutely not. In 2003, when the
current Chapter 29 was last revised, both after Planning
Commission and Town Council hearings several Los Gatos
residents got extensively involved in a public workshop
type setup and we produced the present document that was
then approved by the Town Council.
In the Desk Item that I sent you today I suggest
two possible ways to improve this draft. 2A specifically
talks about dividing the Tree Protection Ordinance into the
two distinctions. Both are based on my observations as to
how to make this ordinance more effective. I am sure that
there are other ways, including some of the proposals from
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I Ms. Quintana's Desk Item that you also have, that can
2 improve it, and I recommend that this document now be sent
3 to some appropriate group of committee, chaired by Bob
4
Kass, before going to the Town Council. There is just no
s
way to workshop these documents in this kind of a format.
6
It only makes sense to give the Town Council a document
7
that's ready for primetime.
8
9 CHAIR BURCH: Thank you. Does anyone have any
10 questions? No? Thank you very much.
11 All right, Mary Keith Osborn.
12 MARY KEITH OSBORN: My name is Mary Keith Osborn
13 and I live on 1705 Wild Way in an oak woodland. It was a
14 very early 1909 subdivision. We have lots and lots of oaks.
15 People take out the oaks and they're not replaced with
16 oaks, and they should be, because we're losing our oak
17 woodlands.
18 I've just come from an oak conference in Visalia
19
where they love their trees and they have Valley Oaks all
20
aligned on the way to the end. It's too bad we don't have
21
more native oaks on our access roads to Los Gatos.
22
We also have Toyons, and Toyons are important
23
24 too, and they're shrubs; you haven't mentioned shrubs.
25 They're very necessary; the birds eat them.
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I live in the oak woodlands. I've been there for
75 years. I know all the plants. I belong to the California
Native Plant Society and the Oak Woodlands.
Most of what he said is just great. My neighbor
removed a Blue Oak probably 12" in diameter and he replaced
it with a... What do they call them? Anyway, he didn't
replace it with a native tree, and I felt that's really
sad, and I don't think he got permits to do it either.
The neighbor put rocks around an old Valley Oak
and filled it in with dirt right next to the... I went to Rob
Moulden, I think... No, I didn't go to Rob Moulden, but I
said, "Hey, this is really bad for the tree, because you're
putting water down there and you're going to ruin the roots
and there's no air exchange," and he didn't listen.
I've lost lots of trees. We had (inaudible). We
had six acres of oak woodlands, we had quail, and about 35
years ago the Town gave permission to my neighbor to erase
that and put in Vasona Business Park. We have no more
quail; we have a lot of trees that are gone. It's just a
shame.
I just hope that when an oak tree is removed that
it is replaced with another tree, and I didn't have much
chance to... I just got home and I had a message on my
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machine from someone in the City and said we're having the
oak conference...
(Timer sounds.)
COMMISSIONER O'DONNELL: Thirty seconds.
MARY KEITH OSBORN: Well, that's okay. I'll just
give up. I mean I have a lot more to say and there's lots...
COMMISSIONER KANE: You have 30 more seconds,
ma'am. That's not your red light, that's your yellow light.
MARY KEITH OSBORN: I don't know. I've spoken
before, but I just came unprepared. I have a lot more.
There are diseases in our oaks that are really bad and I'll
talk to Rob Moulden about it.
CHAIR BURCH: Actually though, I have a question
for you, so if you wouldn't mind staying.
In hearing what you had to say and looking at the
wording on this, would it be your recommendation in the
portion of these documents that discuss replanting that
there be wording in here very specific to our oaks, that if
an oak is removed from a property that it must be replaced
with a like kind?
MARY KEITH OSBORN: Yes, because we're losing our
oak woodlands, and they're on private property mostly,
unlike the redwoods, and there is such a tremendous amount
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of animal life within the oak forest. Yes, they really
should be replaced with another oak.
CHAIR BURCH: Okay, thank you. Do we have any
other questions for the speaker? Mr. Kane?
COMMISSIONER KANE: No, that was it. You asked my
question.
CHAIR BURCH: Thank you very much. I don't see
any other speakers, so at that we're going to close the
public portion of the hearing and now return to discussion.
Does anyone have any questions of Staff, a comment, or want
to make a motion? Oh, wow. Okay. Commissioner Talesfore.
COMMISSIONER TALESFORE: Thank you. Of Staff, Mr.
Weissman made a suggestion about something that had
happened previously, a committee that was formed that
contributed to this. Anyway, my question would be to
follow. What do you think? Is that something we should
consider, or not?
BOB KASS: I'll make a comment ana let the
Community Development folks talk.
I think the Commission could certainly include
that as your comments and recommendations to the Council in
moving this forward, and the reason I say that is because I
do feel it's important to move this forward, given what
we've seen and what we're trying to grabble with, and get
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1 some clarity, and get some better guidance on how we deal
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3 What we've come up with certainly isn't perfect.
4
Anything can be improved over time, but it gets to subject
5
elegance creep where when do you stop refining the
6
document? I know we've heard some good comments from the
7
Commission already. Forwarding those forward, if you feel
s
9 strongly about wanting to pull off the hillsides and
to suggest that the Council move forward with a more focused
11 hillside reforestation native tree process, I think that
12 would be a very appropriate comment to include in
13 forwarding that to the Council, and then if the Council so
14 desires to establish a subcommittee or work with the
15 General Plan Committee or any sort of process, I think that
16 gives them the attention to do that.
17 COMMISSIONER TALESFORE: Now, I think the reason
is there might be merit in it is because there is a lot more
19
development happening in our hillsides, so that would be my
20
comment. Thank you.
21
CHAIR BURCH: Commissioner Hanssen.
22
COMMISSIONER HANSSEN: I had a specific comment
23
and then a couple of general comments.
24
zs Actually, my question was on the second part of
the first little changes. One was the Heritage Tree. This
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is direction from Council. And the other thing was the 25%
pruning, and I just couldn't get past that, because I was
trying to envision how this thing would work and how you
would measure.
It's very clear how to measure the diameter of a
tree, and if you get your tree trimmed and it's today, and
you have the trees trimmed tomorrow and the next day, it's
pretty easy to measure how you go from 1% to 25 %. But a
year from now the tree grows back some. You trim some more.
How on earth would anyone be able to measure that and to
know that they were in compliance?
BOB KASS: It is challenging, and in fact if you
look at the standards for pruning and maintenance by ISA,
the International Society of Arboriculture, the 25% itself
is somewhat... I mean what does 25% mean? Is it 25% of the
canopy? Is it 25% of the main structural limbs, and how do
you judge it? It isn't an science, but by putting that in
there it's really a statement that the Town is not going to
accept somebody who comes in and does clearly 25 %, and then
the next year does 25 %, and then the next year does 25 %. We
had no restriction against that. And 28%, 30%, what's
appropriate?
We also have statements in here that any pruning
has to be for a specific objective, and there are very
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1 Ispecific reasons for pruning: for structure, for
2 laesthetics, for health, for maintenance, and so pruning
3 can't just be done to just reduce a tree to something
4
that's not a tree, so I think we have it covered. I mean I
s
think you're right, it's a little bit subjective, it's a
'a
little bit difficult to measure, but I do think we have it
7
covered by adding this additional language.
s
9 COMMISSIONER HANSSEN: Okay. So I get that, and I
to figured even the original 25% was difficult, but I just
11 wanted to say that.
12 I Then I want to get back to kind of a general
13 Icorrffnent, and I think it's somewhat in line with some of the
14 lother comments that were made.
15 I As I was going through this and I thought about
16 (the General Plan, I thought this is good to tell you what
17 (not to do, but it doesn't tell you what to do. I personally
18 would like to see some kind of document, maybe it's a
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separate one, that's like a form based code that says this
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is how Los Gatos would like to see trees be. Not how not to
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do them, you have to have that too, but I was thinking more
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about it would be nice to have something like that, like
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24 (here's what we want and how to get there.
25 I was looking also at the Parks Commission's
comments and an education program for the residents. This
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is difficult for us that have a lot of experience. How does
the average resident even know where to go? I mean I think
you can measure the diameters of trees and stuff. So I
don't know that that changes an approval of this document,
but it definitely was on my mind.
My third comment, and I don't know that it is in
the purview of tonight's discussion, but I wanted to bring
up the comments in the Staff Report about the large number
of tree removal appeals that have come to the Planning
Commission. I've only been party to one since I've been on
this commission, but I wondered if there wasn't another
review of this document or the process for people applying
for tree removals to make sure that it's getting the
desired result? And I saw that there's some clarifying
language, but I wondered if there aren't some issues with
the general process and how it flows and works that's
leading to the large number of appeals, and I wondered if
that should be looked at.
CHAIR BURCH: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I have just two comments
I guess it would be.
Number one, I don't particularly agree with the
definition of the Heritage Tree. I have difficulty
protecting trees. But to define a Heritage Tree simply on
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I Ithe diameter to me plays games with the language. There's
2 Inothing Heritage about certain trees that are of a certain
3 dimension. They don't become Heritage because they grew up,
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so I could not support the definition of Heritage Tree as
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presently done.
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But more importantly, and what would be more
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boringly, I unfortunately have gone over the chapters, the
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9 draft, the redlines, the whole thing, with some care, and I
to have a number of comments that I talked to the Town
11 Attorney about, not specifically, but I'm perfectly
12 comfortable to give to him my marked up copy. This was not
13 drafted by a lawyer, with all due respect, and I suppose
14 that's an advantage, but occasionally lawyers do bring
1s something to the party and some of the language here would
16 not withstand legal scrutiny, and that means if you get
17 sued on it, it will be a field day. So I personally don't
18 think that this draft has gotten enough review and comment,
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and at best I will simply turn over my pages to comments.
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Lawyers have a bad habit of picking some
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arguments that are really not important. I've tried not to
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do that. I've tried to be helpful in this, and somebody
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else can judge how helpful it is.
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zs But I know this: If we can't discuss these
things, and I don't think the moment is a good time to do
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it, ten minutes to ten, I don't know how we can tonight say
it's fine, we recommend you adopt it, and maybe we have one
question, that's Heritage Tree, or maybe we have another.
The list, we don't like something on the list. I think that
gives short shrift to this whole process.
So whether it's us, or whether, as suggested,
that it is a committee formed with people that have
certainly a greater expertise than I have, to me there are
only two possibilities. We either spend more time and we
actually discuss this section -by- section, and we perhaps
set a special meeting for that, or we allow the Town
Attorney, for example, to have more time. I perhaps am
imaging this, but I would imagine that the job of the Town
Attorney is overwhelming, and therefore it's very difficult
for him to critique this.
I think it's a wonderful job. I'm not attacking
your job. The language however leaves something to be
desired, and no wonder; it's a lot of language.
So I'm not prepared this evening to recommend the
approval of this for the two reasons I just stated.
CHAIR BURCH: Let me ask a question. Originally
going into this my thought had been we would go section -by-
section, however there's just been so much basic dialogue
lin understanding how the document itself originated and
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Ichanged, we haven't been able to get into that, and I know
Ithere are quite a few people that have comments.
Would this be, and I guess I would ask you; maybe
Iwe do a special meeting to go section -by- section with this?
(Otherwise, what do we do? Do we all submit our comments for
Iyou guys to review? I think that there are a lot of things
Ito go through, and I would just like to know from my fellow
commissioners if that's an agreeable path, or if you have a
different idea. It certainly sounds like none of us are
ready to move it on. I think there are enough questions
that we all would like a little bit more tweaking.
Commissioner Erekson, what are your thoughts?
CHARLES EREKSON: I had concerns before, and my
friend and colleague Mr. O'Donnell caused those to be
heightened a bit. I just suggest to the Chair if we were
going to take the path that you were suggesting, it would
make sense to me to allow members of the Commission to give
the Staff their comments. I mean Mr. Schultz may look at
what Commissioner O'Donnell and say I understand now why
he's a retired attorney, not a current practicing attorney.
I don't know what he'll say, but assuming that there is one
gem of wisdom in there that might be incorporated, then we
would have the benefit, and they would be obviously free to
not incorporate whatever.
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It wouldn't seem to me that it would be
particularly useful to call a meeting for us to give the
comments to, and then to have a second special meeting
after the Staff has had a chance to wade through those.
CHAIR BURCH: I completely agree with you. Is
that an acceptable way, you would think, if we were to...
ROBERT SCHULTZ: Yes. I mean that exactly was my
point. If you've done a lot of work and you've got comments
and you've got your marked up sheets, please give those to
Staff, and then we certainly can do a workshop, more
informal, and then go page -by -page since it's difficult to
do this type of task at 10:00 o'clock at night. And
probably at every one of your meetings it's going to be a
10:00 o'clock at night, so it might be one that you do a
workshop and get to a point when you can make a
recommendation to Council. Unfortunately, the Planning
Commission doesn't have the ability to appoint a
subcommittee of Planning Commission and members of the
public, only Council can do that, but maybe after a
workshop that could still be a recommendation.
But I am with Bob saying that this is a high
priority to get to Council, because of the issues that have
come up recently with tree removal appeals, so we do want
to get through it. So if we're going to do a workshop, I'd
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I Ilike it to be fairly soon so that we can move on and get it
2 up to Council in an appropriate time.
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LAUREL PREVETTI: The other comment I would just
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add is that I would recommend that we do a workshop in
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between our regularly scheduled meetings, so that way when
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we are ready to continue we can continue this to a date
certain, so that way the public hearing remains open.
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9 1 COMMISSIONER O'DONNELL: May I say something?
10 1 CHAIR BURCH: Of course.
11
O'DONNELL: I have marked up my
12 copy, as I've indicated, not with the intention just to
13 hand it to somebody, because it's my scribbling. I don't
14 know if this is online. It is online? Because I need a
15 clean copy, and I would be willing to get rid of some of my
16 (comments and make the other ones more legible, and then if
17 w could agree when those of us who have written comments
18 would submit them, I would be happy to do that, and I think
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there are others who will have specific comments. If we
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could all do that, we could all agree to a time, a date, to
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do it, and maybe set up this special meeting, at least then
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the whole Staff would know what we're talking about. And
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24 1 you might respond by saying I think a couple of these
25 (things are well worth pursuing, and here's my answer to the
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other ones, and it would be a better use of everybody's
time, so you'll know what we're talking about.
JOEL PAULSON: And I think the other benefit is
then we can include that with the Staff report, so all the
Commissioners have the same information as to what other
Commissioners' comments were, and that may trigger other
comments and /or questions.
CHAIR BURCH: So that being said, would it be
beneficial to say we could have comments on this to Staff
by what, Tuesday? I know Monday is a holiday, so people
will be out of town. Is Tuesday an acceptable amount of
time for people to mark up a clean... Okay. So if we had it
to the Staff by, I'm going to say, end of day Tuesday, 5:00
o'clock Tuesday, close of business, when would be an
adequate amount of time to process all that information and
meet again?
LAUREL PREVETTI: We were just having that same
consultation and we were thinking maybe March 4th for the
special meeting. It affords the public opportunity to also
continue to submit comments to us, so we can see how we can
reconcile all the comments. So March 4th for the special
meeting. would we be ready by March 11th? We'd probably need
more time. So the 25th would likely be then the date when we
would continue this public hearing.
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1 CHAIR BURCH: Do those dates sound acceptable to
2 everybody? Yeah. We need to make a motion on that? Mr.
3 O'Donnell, thank you.
4
COMMISSIONER O'DONNELL: I'll try the motion. I
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move that we continue this matter until March 25th with the
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intention that prior to that date on the 25th, and
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particular on March 4th, any Commissioner who has written
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9 comments to make, or markups of the proposed ordinances,
to would submit them by this coming Tuesday, which is the 17th
11 by close of business on that date, to allow the Staff
12 enough time to consider any and all written comments and
13 hopefully to respond, and actually will respond, prior to
14 the date of the 25th
15 CHAIR BURCH: Do I have a second? Commissioner
16 IBadame.
17 I VICE CHAIR BADAME: I'll second the motion.
1e CHAIR BURCH: All right, so do we have any
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comments? All in favor? Great.
BOB KASS: Thank you very much.
CHAIR BURCH: Thank you.
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