Attachment 3 Part 3Joel Paulson
From:
David Weissman <gryllus @gmail.com>
Sent:
Tuesday, February 17, 2015 3:21 PM
To:
Joel Paulson
Cr
Laurel Prevetti
Subject:
Tree ordinance - chapter 29 only
Attachments:
img397jpg; Tree ordinance. Feb 16, 2015. To.docx; Master DIVISION 2.docx
Joel and Laurel,
please see the attached suggested changes and revisions to the tree protection ordinance.
1. I have just worked with the current ordinance and not the proposed one. I think that this will be easier for you
to interpret since changes to Kass' changes can be very confusing. If there are proposed changes in Kass' draft
that I want to comment on, then I have added them to my document.
2. I have tried to separate all hillside aspects from flatland aspects. If I haven't commented or inserted a section
of the proposed revisions, then assume that I have no comment or issue with the proposed revision.
3. If I have a comment on the revised ordinance, then I have used the same numbering as in the draft.
I have also attached the flow chart re penalties for tree and grading ordinance violations. This is the same flow
chart that was part of desk item #3 at the last PC meeting. There is also a separate discussion of why I feel that
this is the best way to handle such tree (and grading and other ?) infractions.
One more very important issue, which I think needs to be addressed, but I am not sure in what format to best
address it. The overall process of evaluating the trees on a lot planned for development, as I understand it, goes
something like this: (1) There is a preliminary arborist report, (2) then a house plan is submitted, (3) then a final
arborist report is made taking into account the house plan, and finally, (4) if the plan is approved, tree removal
permits are issued. I believe we need an extra step between (3) and (4) whereby the arborist, staff, and possibly
the Community Development Committee or Parks Committee get together and see if reasonable changes to the
house's location, size, orientation, etc. can be made that will result in fewer trees having to be removed. This
added step, if it now occurs at all, seems to be relegated to the DRC format or, in some cases, to the Planning
Commission. But this is the only time someone seems to be able to speak for the trees. And the primary goal of
the tree ordinance should be how to save as many trees as possible. Maybe these thoughts should also be
included into an "intent" section somewhere in the ordinance?
Please let me know if I can clarify anything.
Dave
Dave Weissman
15431 Francis Oaks Way
Los Gatos, CA 95032
H: (408) 358 -3556
grvllusCwgmail.com
ATTACHMENT 4
3/4/15 pc Workshop Memo
To: Town of Los Gatos Planning Commission
Re: Revisions to the Tree Protection Ordinance
From: Dave Weissman, Feb 17, 2015
Some thoughts on why the attached flow chart (or something similar) may be the
best way to handle violations of the tree protection and grading ordinances.
As now set, Sec 29.10.1015 of the tree protection ordinance addresses violations,
giving much discretion to the Director. But Directors change, come to the table with
different backgrounds, prejudices, time demands and expertise. Most such
violations are themes on the same pattern and it makes little sense to reinvent the
wheel each time a Director changes or a new violation arises. Yes, the Town now has
a full time code enforcement officer, but who knows how long that will last? Plus
there now may be appearances of favoritism or good old boys club aspects involved
in assigning penalties for such violations. For these reasons, and economy of scale,
and in an effort to bring such violations to an expeditious close, a flow chart could
achieve all of these objectives.
To buttress my claim of inefficiency and inconsistency in dealing with past grading
and tree protections violations, I cite the 5 following incidents within the past 18
years on my street of Francis Oaks Way. Please remember that there are a total of
just 18 lots on Francis Oaks Way and that we are just one of many public and private
roads within the Los Gatos Hillsides.
1. 15500 Francis Oaks Way. On October 28, 1998, December 28,1998, June 11,
1999, and June 25, 1999, the owner was cited or noticed for continued and illegal
grading of 8.6 undeveloped acres and removing surface chaparral vegetation plus
some 20 protected oak trees. He sold the property in 2000 with no fines being paid
and no replacement trees planted, or at least none still surviving.
2.15471 Francis Oaks Way. On November 18, 1999, the owner was cited for grading
infractions. The property was subsequently sold for development and subdivided
into 3 lots. No fines were ever paid.
3. 15401 Francis Oaks Way. On September 21, and October 24, 2000, the owner was
cited for illegal tree removal, tree trimming, and grading. To the best of my
knowledge, no fines or tree replanting was ever done.
4.15451 and 15471 Francis Oaks Way (same owner of both parcels). On December
7, 2004, the owner was cited for illegal clearing of vegetation. These infractions
were finally settled in April, 2009, some 4 1/2 years after the occurred. In August,
2014, the same owner again illegally graded 15451 Francis Oaks Way and was only
required to pay twice the normal fee for the issuance of a retroactive grading
permit.
S. 15311 Francis Oaks Way. In November, 2006, the owner illegally graded more
than 1000 ftz removing surface shrubs and other vegetation. As of today, over 8
years later, Town required remediation is still not completed.
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DIVISION 2. - TREE PROTECTION
• See. 29.10.0950. - Intent.
This division is adopted because the Town of Los Gatos is forested by many native and
non - native by Oak, Bay, Eucalyptus, SyEarfleFe, Red wed, ^ me-and-other-trees of great
beauty. The health and welfare of the citizens of the Town require that these trees be
saved in order to preserve the scenic beauty of the Town, prevent erosion of topsoil,
provide protection against flood hazards and risk of landslides, counteract pollutants in
the air, maintain climatic balance and decrease wind velocities. Trees contribute
significantly to the value of land in the Town. It is the intent of this division to regulate
the removal of trees within the Town in order to retain as many trees as possible
consistent with the purpose of this section and the reasonable use of private property. It
is the intent of this division to preserve as many protected trees as possible throughout
the Town through staff review and the development review process. Because there are
significant, intrinsic biological and ecological differences between the hillsides and
flatlands of the Town the goals of this section are most easily achieved by addressing
these areas separately. This section does not supersede the provisions of Chapter 26 of
this Code.
(Ord. No 2114, §§ 1, /1 8 -4 -03)
• See. 29.10.0955. - Definitions.
The following words, terms and phrases, when used in this division, shall have the
meanings ascribed to them in this section.
Budding envelope means the area of a parcel that (1) upon which, under applicable
zoning regulations, a structure may be built outside of required setbacks without a
variance or; (2) is necessary for the construction of primary access to structures located
on the parcel, where there exists no feasible means of access which would avoid
protected trees. On single - family residential parcels, the portion of the parcel deemed to
be the building envelope access shall not exceed ten (10) feet in width.
Certifiedor consulting arborist means an individual in the profession of arboriculture
who, through experience, education, and related training, possesses the competence to
provide a tree report, tree survey or supervise the care and maintenance of trees; and
who is certified by the International Society of Arboriculture, a member of the American
Society of Consulting Arborists or approved by the director.
Dangerous means a tree, which is an imminent hazard or threat to the safety of
persons or property as determined by a certified arborist or the deciding body.
Development means any work upon any property in the Town which requires a
subdivision, planned community zone, variance, use permit, building permit, demolition
permit, grading permit or other Town approval or which involves excavation, landscaping,
construction or clearing and grubbing within the dripline or any area that would affect a
protected tree.
Diameter means measurement of the trunk diameter for the purpose of applying
this section shall be made three feet (36- inches) above natural grade. Measurement of
multi - trunked trees shall be determined by the sum of all trunks measured above the
trunk union.
Director means the Director of Community Development, Director of Parks and
Public Works or the director's designated representative
Dripline area means the area within X distance from the perimeter of the trunk of
the tree at three feet (36- inches) above natural grade, where X equals a distance ten
times the diameter of the trunk as measured at three feet (thirty -six inches).
Flatlands means any parcel within the Town not included within the Hillsides as
shown on the map on page 8 of the Town of Los Gatos January, 2004, Hillside
Development Standards and Guidelands.
Heritage tree: Depending on how this document is implemented, since the Planning
Commission may elect to eliminate the designation of "heritage tree', I recommend this
designation only apply to trees in the flatlands.
Hillsides means any parcels subject to the Hillside Development Standards and
Guidelines as shown on the map on page 8 of the Town of Los Gatos January, 2004,
Hillside Development Standards and Guidelines
Native means any tree that is found in the immediate habitat and can usually be
seen when standing next to the tree or location under consideration For instance
redwood trees are native to the Santa Cruz Mts but they are not native to the oak
woodlands and chaparral areas of Los Gatos. There are always good ecological reasons
for why certain tree species are where they are.
Protected tree means a woody perennial plant, usually with one (1) main stem or
trunk, and many branches. It may appear to have several stems or trunks and is usually
over ten (10) feet high at maturity. A tree in the protected tree category means a tree
regulated by the Town of Los Gatos (as set forth in Section. 29.10.0960, Scope of
Protected Trees.)
Pruning means the selective removal of plant parts to meet specific goals and
objectives, such as to control growth and enhance performance or function by
developing and preserving tree structure and health in accordance with the current
version of the Best Management Practices —Tree Pruning (ANSI A300 -Part 1), produced
by the International Society of Arboriculture (ISA).
Public nuisance, as described in Section 26.10.055, means any trees, shrubs, plants
or parts thereof growing in, or overhanging, a public street or right -of -way, or upon
private property, interfering with the use of any public street or public place in the Town,
or trees which, in the opinion of the director, endanger the life, health, safety, comfort or
property of any persons using such public street, or in such public place, because of the
tree's or shrub's location, condition of its limbs, roots or trunk, or because of its diseased
condition, is hereby declared to be a public nuisance.
Remove means any of the following: (1) Complete removal, such as cutting to the
ground or extraction, of a protected tree; (2) Taking any action foreseeably leading to the
death of a tree or permanent damage to its health; including but not limited to severe
pruning, cutting, girdling, poisoning, ovenvatering, unauthorized relocation or
transportation of a tree, or trenching, excavating, altering the grade, or paving within the
dripline area of a tree.
Severe pruning means either the removal of more than one - fourth of the
functioning leaf and stem area of a tree in any twelve -month period, topping or removal
of foliage so as to cause the unbalancing or unnatural shape of a tree.
Shrub means a bushy, woody plant, usually with several permanent stems, and
usually not over fifteen (15) feet high at maturity.
Significant impact from a tree on a property means an unreasonable interference
with the normal and intended use of the property. In determining whether there is a
significant impact, the typical longevity of the subject tree species, the size of the tree
relative to the property, and whether the condition can be corrected shall be considered.
Normal maintenance, including but not limited to, pruning, and leaf removal and minor
damage to paving or fences shall not be considered when making a determination of
significant impact.
Street tree means those trees in a public place, or along or within a public street or
right -of -way.
Tapping means heading back of the crown and /or creating large stubs without
regard to form.
Tree protection zone (TPZ) means the area of temporary fenced tree enclosure
under the tree's dripline or as specified in a report prepared by a certified or consulting
arborist. The TPZ is a restricted activity zone where no soil disturbance is permitted
unless approved and supervised by the certified or consulting arborist _Also, unless
otherwise approved all construction activities must be conducted outside the fenced
areas (even after fencing is removed) and outside from beneath canopies of retained
trees These activities include but are not limited to the following: grading surface
armninn . trenrhinn enuinment cleaninn. stockoilino /dumoina of materials, and
Tree canopy standard means a replacement tree formula to mitigate removal of a
protected tree. The standard is based on measuring the widest distance across the
canopy of a tree for the purpose of determining the mitigating size and number of
replacement trees.
Tree value standard means the method of appraising a tree's value to a property
using the trunk formula as described in the most recent edition of the Guide for Plant
Appraisal published by the Council of Tree and Landscape Appraisers (CTLA).
Comment [DW1]: Since different
consulting arborists have different
philosophies and training, I suggest that this
wording also be included. I have lifted this
wording verbatim from the tree inventory
report of April 20, 2005, section 7.2.3,
written by David Babby who was the
consulting arborist for the Highlands of Los
Undeveloped lot means any lot that is significantly under - developed or utilized
against current zoning. Parcels that feature roads, walls, landscaping or other such
improvements are considered undeveloped (See also, vacant lot).
Vacant lot means any lot featuring existing development that is no longer occupied
or otherwise used in accordance with existing zoning. (See also, undeveloped lot)
(Ord No. 2114, 01,, 118-4-03)
Sec. 29.10.0960. - Scope of protected trees.
This division shall apply to every property owner and to every person, corporation,
partnership, sole proprietorship or other entity responsible for removing, maintaining or
protecting a tree. The trees protected by this division are in two categories:
Trees in the btlan4
Trees in the Hillsides Intent.
The Los Gatos hillsides are mostly covered in native oak woodlands and scrub -
chaparral. Such habitats provide refuge for a variety of vertebrate and invertebrate
species along with their associated plant communities. Within any natural oak woodland
there is a diversity of trees with reference to health and vitality. Removing all sick or
dead trees and limbs is not beneficial to the overall health of the ecosystem This section
recognizes that even oaks and other native trees in poor health if not dangerous to
human safely, are of benefit to the community because they provide both shelter and
food to a variety of animals. If away from a proposed structure all efforts should be
made to preserve them. Likewise a tree with several dead or dying limbs may be saved
with selective pruning and limb removal. Native trees should be given the chance to
recover after some professional care This Section also recognizes that overarching
standard enumerated in the HDS &G's objectives: Property owners should have the
opportunity to build but such changes must recognize and respect the constraints
associated with hillside development All efforts should be directed at preserving the
character of the hillsides and as many native hillside trees as possible
(1)
Comment [DW2]: I leave this section blank
because most of Robert Kass'staffs report
deals with this section
All native trees which have a ten- Inch or greater diameter (thirty one Inch
thiFty seven and one half '^-11 circumference) of any trunk, or in the case of
multi -trunk trees a total of tweWe -ten (1612) inches or greater diameter or
more of the sum diameter (thirty -one inch seven and One -half Feh
circumference) of all trunks, where such trees are located on developed
hillsideresidential property.
(2)
All trees of the following �peciesi(which have an seveneig#+t -inch diameter (twenty
- _ -----__ - ----------- --------- --- - -
two-five-inch circumference):
a.
C.
91
Blue Oak (Quercus dougfasii)
Black Oak (Quercus kef/ogh)
_.._ -- -
California Buckeye (Aescufus cafifornica)
Pacific Madrone Arbutus menziesii)
(3)
All trees which have a three #euf inch or greater diameter (nine and twe�
one half -inch circumference) of any trunk, when removal relates to any review
for which zoning approval or subdivision approval is required.
(4)
(5)
(6)
Any tree that existed at the time of a zoning approval or subdivision approval and
was a specific subject of such approval or otherwise covered by subsection (2)
of this section (e.g., landscape or site plans).
Any tree that was required to be planted or retained by the terms and conditions
of a development application, building permit or subdivision approval in all
zoning . districts, tree removal permit or code enforcement action.
All trees which have a three€eur -inch or greater diameter (ninetwelve and one -half
inch circumference) of any trunk and are located on a vacant lot or
undeveloped property.
Comment [DW3]: Under the current
- ordinance, tree diameters were measured
36" above the ground. Under the new
proposed ordinance, trees will be measured
at 54" above ground. Because even big trees
taper as they get taller, their measured
protected diameter should be adjusted.
Comment [DW4]: On the other hand, since
several of these tree species are deciduous
(and at different times of the year than each
other), and may be more difficult to identify
without leaves, perhaps a blank statement
that all hillside trees greater than 7 inches in
diameter, regardless of species, are
protected on developed parcels, is best
Formatted: Font: Italic
Formatted: Font: Italic
Formatted: Font: Italic
F)
(7$)
All publicly owned trees growing on Town lands, public places or in a right -of -way
easemenj[
($9)
A protected tree may also be a stand of trees, the nature of which makes each
dependent upon the other for the survival of the stand.
Measurement of trunk diameter (or circumference) for the purpose of applying this
section shall be made 4.5 feet (54 inches)t'F^^;eet above natural grade.
Measurement of multi - trunked trees shall be determined by the sum of all trunks
measured at 4.5 feet above natural grade.
(0& No. 2114, ¢f 1, I!, 8 -4 -03)
• Sec. 29.10.0965. - Prohibitions.
Except as provided in section 29.10.0970, it shall be unlawful for anyone:
(1)
(52)
To remove or cause to be removed any protected tree in the Town without
obtaining a permit to do so.
4 - -- - - - - --
D
For any person or business entity engaged in the business of removing trees or
tree care to remove a protected tree without a permit under this division. This
Comment [DW5]: l am assuming that this
would also apply to public streets in hillside
developments
Comment [DWS]: High resolution Google
Earth might help document excessive tree
trimming..
Comment [DW7]: Where w1114 inch root
- diameter be measured? Where emerges
from tree root "ball" or where exposed on
the surtacel
permit shall be posted rt-site at all times during the removal of a tree and Comment[DW9]: This way, neighbors can
----------------------------------------------------------- - - - - -- - check that permit obtained and not have to
must be made available upon request from the Chief of Police, Code bother calling the police, eta
Compliance Officer, Director of Parks and Public Works Department, or their
designee.
(Ord. No. 1114, 551 q 8 -4 -03)
• Sec. 29.10.0970. - Exceptions.
The following tree removals and conditions are excepted from the provisions of this
division and may be removed without Town approval or issuance of a tree removal
permit:
(1)
Emergencies. If the condition of a tree presents an immediate hazard to life or
property, it may be removed without a permit on order of the Town Manager,
the Town Engineer, the Planning Director, the Public Works Director or a
member of the police, fire, or emergency personnel.
(2)
Comment[DW9]: Again, because of
A fruit or nut tree that is less than eighteen (168) inches in diameter (fifty �
' increased height of measurement
i
Comment [DW10]: Even partially
inch�ircumferenc4. ----- ____J.
developed hillside areas are, by their nature,
' disturbed. However, by encouraging (or
even requiring during the permitting
(3) Any non - native hillside tree regardless of size or species, may be removed and
process!) the removal of non - native trees
and vegetation in areas away from the main
must be replaced by native (as defined in Definitions) tree(s) as specified in
structure, can help mhtimac the ecological
disturbance and increase the sustainability,
Table 3:k Other suitable replacement trees may be listed in Appendix A of the
of the area. For instance, Eucalyptus trees,
all of which are non - native, suppress native
HDS &6.
vegetation through their production of oils
and other compounds, provide unnatural
(Ord. No. 2114, 451, II, 8 -4 -03J
vantage perches for predatory birds
because of their height, are not fed on by
any native insects or herbivores, and kill
• Sec. 29.10.0975.- Emergency action.
hummingbirds because their produced oils
and gums clog up their nostrils when they
visit their Flowers. Removing Eucalyptus
A person may remove or severely prune a protected tree without a permit if there is an
may permit native vegetation to recolonize
emergency caused b the protected tree being in a hazardous or dangerous condition—
g y y p g g
the space that was occupied by them, thus
helping both the native Flora and fauna. The
requiring immediate corrective action to abate the condition. In such event, the property
Town Council at its June 16, 2003, meeting
asked staff to study the situation of non -
owner or representative shall be responsible for the following notification:
native hillside vegetation, for consideration
for later amendments, when they passed the
current tree protection ordinance. This was
(1)
never done by staff but the science is clear:
removing non- natives is beneficial for both
local clams and animals.
Notify the Town (Parks and Public Works Department during business hours/
Police Department after business hours) prior to removal in order to confirm
the emergency situation. If the Town confirms the emergency situation, photo
documentation and written verification by the tree service removing the tree
will be requiredu Comm ®nt[DWI t]: what happenslfa
_____ __--------- _________________„ property owner removes said tree, or cuts it
(2) down, instead of a tree service?
After the abatement, no later than two days from the date the tree was removed
or severely pruned because of the emergency, the property owner shall apply
for a tree removal permit, and submit to the director the documentation
required above and in section 29.10.0980
If the director determines that the condition was not an emergency requiring
immediate action, the person responsible for removing or damaging the protected tree
shall be subject to fines and penalties as set forth in section 29.10.1025.
(Ord No. 2114, 551 118-4-03)
• See. 29.10.0980. - Applications for a tree removal permit.
Applications for a protected tree removal permit for trees on private property shall be
available from and filed with the Community Development Department. Application
submittals for the removal of trees on public property (street trees) are provided for
in Chapter 26.10.060 of the Town Code. Applications for tree removal may be granted,
denied or granted with conditions. Application submittals for trees on private property
shall include the following minimum information for staff review:
(1)
A completed tree removal application form, signed by the property owner or
agent.
(2)
A written explanation of why each tree(s) should be removed and how it meets the
Town's standard for allowable removal.
(3)
Photograph(s) of the tree(s)
(4)
(S)
If required by the director, a certified or consulting arborist's written assessment of
the tree's disposition shall be provided for review by the Town. The report shall
be on company letterhead and include tree size (diameter, height, crown
spread); location on the site; numbered on a site plan or arborists tree survey
(if there is more than one tree); condition of health; condition of structure; and
if hazard tree findings apply, an ISA Hazard Rating Form. Other information,
images, etc. may be included in the report.
Permit fee, as established by Town resolution.
(Ord No. 2114, §§ 1, IL 8 -4 -03)
• Sec. 29.10.0985. - Determination and conditions of permit
The Director of Community Development shall determine whether to grant the permit.
The director may consult with other Town departments or outside agencies at his /her
discretion. When a development application for any zoning approval, or subdivision of
land, including lot line adjustment, is under consideration by the Planning Commission,
the determination on the tree removal permit shall be made concurrently N the
Planning Commission with the related matter. The director or the deciding body shall
impose, except when removal is permitted if the tree is dead or a hazardous condition
exists, as a condition on which a protected tree removal permit is granted that two or
more replacement trees of a species and a size designated by the Director of Parks and
Public Works Department, shall be planted in the following order of preference:
(1)
(2)
Two (2) or more replacement trees, of a species and size designated by the
Director of Parks and Public Works Department, shall be planted on the subject
private property. Table 3 -1 The Tree Canopy — Replacement Standard shall be
used as a basis for this requirement. The -When these replacement trees are for
a hillside property, then the trees shall be native trees chosen from Appendix A
of the HDS &G list. The person requesting the permit shall pay the cost of
purchasing and planting the replacement tree'u
If a tree cannot be reasonably planted on the subject property, the value of the
removed tree(s) shall be paid to the Town Forestry Fund to:
Comment [DW12]: This is not being done
now. For instance, the owner, Owen Nolan,
of 15451 Francis Oaks Way applied for 2
live tree removal permits in 2014 in
anticipation of developing his lot. No plans
had been submitted to the Town. The tree
removal permits were both granted even
though no safety issues existed.
Comment [DW13]: Are these new trees
- still covered by a maintenance warranty
from the homeowner? If yes, then that
should he stated here.
a.
1.3
Add or replace trees on public property in the vicinity of the subject property
or
Add trees or landscaping on other Town property. Replacement value of a
tree shall be determined using the most recent edition of the Guide for
Plant Appraisal, as prepared by the Council of Tree and Landscape
Appraisers.
Table 3 -1 - Tree Canopy - Replacement Standard
COLUMN
COLUMN
COLUMN
Canopy of the removed tree
(Maximum distance across the canopy)
Replacement trees
Altemative tree
4 feet -9 feet
Two 24 inch box size (Minimma)
One 36 inch box size
10 feet -27 feet
Thee 24 inch box size
Two 36 inch box size
28 Feet -40 feet
Four 24 inch box size
Two 48 inch box size
40 feet 56 feet
Six 24 inch box size
Two 36 inch box size
Two 48 inch box size
56 feet -60 feet
Two 24 inch box and two
36 inch box plus
two 48 inch box size
'below
60 feet+
'below
'below
Using Table 3 -1
Table 3 -1, is a matrix formula used to determine how many trees will be required
for planting to approximate the lost canopy of the removed tree over the course of ten
(10) years with moderate care.
(1)
(2)
To measure an asymmetrical canopy of a tree, the widest measurement shall be
used to determine canopy size.
Often, it is not possible to replace a single large, older tree with an equivalent
tree(s). In this case, the tree shall be replaced with a combination of both the
Tree Canopy and Tree Value Standards as determined by the director.
(3)-
- Comment [DW14]:Thiswouldbeanother
1
------- -- --- -------------------- - - - - -- - place to mandate that re placement trees in
(Ord. No. 2114, §§1, 118-4 03) the hillsides must be natives chosen from
Appendix A of the HDS &C.
• See. 29.10.0990. - Standards of review.
Each application for a tree removal permit required by this division shall be reviewed
using the following criteria:
(1)
(2)
(3)
(4)
The condition of the tree or trees with respect to disease, imminent danger of
falling or structural failure, proximity to existing or proposed structures based
on a report from a certified arsonist, structural damage to a building or a
public nuisance caused by a tree. The danger of falling or failure shall be rated
using the ISA Tree Hazard Rating Form or an approved equivalent.
The condition of the tree giving rise to the permit application cannot be reduced
to a less than significant level by the reasonable application of preservation,
preventative measures or routine maintenance.
The removal of the tree(s) will not result in a density of trees or tree cover that is
inconsistent with the neighborhood.
The number of trees the particular parcel can adequately support according to
good urban forestry practices, or whether a protected tree is a detriment to or
crowding another protected tree.
(5)
In connection with a proposed subdivision of land into two (2) or more parcels, no
protected tree shall be removed unless removal is unavoidable due to
restricted access to the property or deemed necessary to repair a geologic
hazard (landslide, repairs, etc.) The tree removed shall be replaced in
accordance with the standards in section 29.10.0985 of this Code. Tree
preservation and protection measures for any lot that is created by a proposed
subdivision of land shall comply with the regulations of this Code.
(6)
The retention of a protected tree would result in reduction of the otherwise -
permissible building envelope by more than twenty -five (25) �ercentl In such a Comment [DW15]: Does this implythat
------- - - - - -- one does not have to consider changing the
case, the removal shall be conditioned upon replacement in accordance with shape and location of the proposed house?
the standards in section 29.10.0985 of this Code.
(7)
The Hillside Development Standards and Guidelines, current version.
(8)
Removal of the protected tree(s) will not result in a substantial adverse change in
the site's aesthetic and biological significance; the topography of the land and
the effect of the removal of the tree on erosion, soil retention, or diversion or
increased flow of surface waters.
(9)
Whether the Protected Tree has a significant impact on the property.
(I'll No. 2114, 55 4 Il, 8 -4 -03)
Section 29.10.0992
........,.Any interested party shall have ten working days from the date of the "Notice of pending issuance
of the tree removal permit" to notify the Director in writing or via emaij of any concerns or leroblem
Sec. 29.10.0995. - Disclosure of information regarding existing trees.
Comment [DW16]: This can be a close call
and should always favor the tree. In some
cases, the tree should be given time of a few
years to see if it can repair itself after some
efforts (feeding, pruning, TLC, etc.) have
been made. On the other hand, native trees
in the hillsides, if away from structures and
proposed development, can be of ecological
benefit when they are in a less than optimal
condition.. Such trees can provide food and
shelter for local animals, nesting habitats,
etc. and should be retained on the property
if of no immediate danger.
Comment [DW17]: "economic enjoyment"
is a tricky phrase but hopefully with input
from neighbors who will be notified of the
permit application to remove the tree, can
be OK. It is just easier now for the arborist
to approve removal than to go through the
longer process
Comment [DW18]: with the Director's
email or some other appropriate person's
address given here.
Comment [DW19]: 1 think that this is
great idea because if homeowner has, for
example, poisoned, over trimmed or
overwatered an oak and killed it, then
neighbors can relate this activity during the
hearing and the proper forensics can be
performed while the dead tree is still on
site.
(a)
IM
(c)
R
(e)
(f)
Any application for a discretionary development approval, or for a building or
demolition permit where no discretionary development approval is required, shall be
accompanied by a signed tree disclosure statement by the property owner or
authorized agent which discloses whether any protected trees exist on the property
which is the subject of the application, and describing each such tree, its species,
size (diameter, canopy dripline area, height) and location. This requirement shall be
met by including the following information on plans submitted in connection with
the development application.
In addition, the location of all other trees on the site and in the adjacent public
right -of -way which are within thirty (30) feet of the area proposed for development,
and trees located on adjacent property with canopies overhanging the project site,
shall be shown on the plans, identified by species.
Within the dripline area or area that would affect a protected tree, the location of
shrubs and other vegetation subject to development shall be shown on the plans.
The director may require submittal of such other information as is necessary to
further the purposes of this division including but not limited to photographs.
Disclosure of information pursuant to this section shall not be required when the
development for which the approval or permit is sought does not involve any
change in building footprint nor any grading, trenching or paving.
Knowingly or negligently providing false or misleading information in response to
this disclosure requirement shall constitute a violation of this division.
(Ord No. 2114, 551, 11, 8 -4 -03)
• See. 29.10.1000. -New property development.
(a)
A tree survey shall be conducted prior to submittal of any development application
proposing the removal of or impact to one or more protected trees. The
U
(d
development application shall include a Tree Survey Plan and Tree Preservation
Report based on this survey. The tree survey inventory numbers shall correspond to
a numbered metal tag placed on each tree on site during the tree survey. The tree
survey plan shall be prepared by a certified or consulting arborist, and shall include
the following information:
(1)
Location of all existing trees on the property as described in section 29.10.0995
(2)
(3)
(4)
Identify all trees that could potentially be affected by the project (directly or
indirectly - immediately or in long term), such as upslope grading or compaction
outside of the dripline;
Notation of all trees classified as protected trees;
In addition, for trees threefeur (34) inches in diameter or larger, the plan shall
specify the precise location of the trunk and crown spread, and the species,
size (diameter, height, crown spread) and condition of the tree.
The tree survey plan shall be forwarded to the director who shall, after making a
field visit to the property, indicate in writing or as shown on approved plans, which
trees are recommended for preservation (based on a retention rating of
high /moderate /low) using, as a minimum, the standards set forth
in section 29.10.0990. This plan shall be made part of the staff report to the Town
reviewing body upon its consideration of the application for new property
development;
Tree preservation report. When development impacts are within the dripline of or
will affect any protected tree, the applicant shall provide a tree preservation report
prepared by a certified or consulting arborist. The report, based on the findings of
the tree survey plan and other relevant information, shall be used to determine the
health and structure of existing trees, the effects of the proposed development and
vegetation removal upon the trees, recommendations for specific precautions
necessary for their preservation during all phases of development (demolition,
grading, during construction, landscaping); and shall also indicate which trees are
proposed for removal. The Tree Preservation Report shall stipulate a required tree
protection zone (TPZ) for trees to be retained, including street trees, protected trees
and trees whose canopies are hanging over the project site from adjacent
properties. The TPZ shall be fenced as specified in section 29.10.1005
(1)
(2)
(3)
The final approved Tree Preservation Report shall be included in the building
permit set of development plans and printed on a sheet titled: Tree
Preservation Instructions (Sheet T -1). Sheet T -1 shall be referenced on all
relevant sheets (civil, demolition, utility, landscape, irrigation) where tree
impacts from improvements may be shown to occur;
The Town reviewing body through its site and design plan review shall
endeavor to preserve all trees recommended for preservation by the director.
The Town reviewing body may determine that any of the trees recommended
for preservation should be removed, if there is evidence submitted, that due to
special site grading or other unusual characteristics associated with the
property, the preservation of the tree(s) would significantly preclude feasible
development of the property as described in section 29.10.0990
Approval of final site or landscape plans by the appropriate Town reviewing
body shall comply with the following requirements and conditions of approval:
a.
The applicant shall, within ninety (90) days of final approval or prior to
issuance of a grading or building permit, whichever occurs first, secure an
appraisal of the condition and replacement value of all trees included in
the tree report affected by the development that are required to remain
within the development. The appraisal of each tree shall recognize the
location of the tree in the proposed development. The appraisal shall be
performed in accordance with the current edition of the "Guide for Plant
Appraisal" under the auspices of the International Society of Arboriculture.
The appraisal shall be performed at the applicant's expense, and the
appraisal shall be subject to the director's approval.
a
(e)
(f)
The site or landscape plans shall indicate which trees are to be removed.
However, the plans do not constitute approval to remove a tree until a
separate permit is granted. The property owner or applicant shall obtain a
protected tree removal permit, as outlined in section29.10.0980, for each
tree to be removed to satisfy the purpose of this division.
Prior to acceptance of proposed development or subdivision improvements, the
developer shall submit to the director a final tree preservation report prepared by a
certified or consulting arborist. This report shall consider all trees that were to
remain within the development. The report shall note the trees' health in relation to
the initially reported condition of the trees and shall note any changes in the trees'
numbers or physical conditions. The applicant will then be responsible for the loss
of any tree not previously approved for removal. For trees that are not protected
trees, which were removed, the developer shall pay a fine in the amount equal to
the appraised value of the subject tree. For protected trees, which were removed,
the developer shall pay a fine in the amount of the appraised value of such tree in
addition to replacement requirements contained in section 29.10.0985 of this Code.
The applicant shall remain responsible for the health and survival of all trees within
the development for a period of one (1) ea following acceptance of the public
improvements of the development.
Protective fencing inspection. Prior to issuance of any demolition, grading or
building permit, the applicant or contractor shall submit to the building department
a written statement and photographs werifying� that the required tree protection
fence is installed around street trees and protected trees in accordance with the
Tree Preservation Report.
�11 required by the director and conditioned as part of a discretionary approval, a
security guarantee shall be provided to the Town. Prior to the issuance of any
permit allowing construction to begin, the applicant shall post cash, bond or other
security satisfactory to the Director, in the penal sum of five thousand dollars
($5,000.00) for each tree required to be preserved, or twenty -five thousand dollars
($25,000.00), whichever is (essl. The cash, bond or other security shall be retained for
a period of one (4 ear following acceptance of the public improvements for the
Comment [DW20]: This is too short of a
time for the following reasons: mature trees,
especially oaks in the hillsides, can be fairly
tolerant of various insults and may take 3 to
5 years to die from overwatering, excessive
pruning, compacting of soil, poisoning from
spilled chemicals like motor oil, etc. This
longer period will force the developer and
subsequent residents to take better care of
their trees duri of those early, most
vulnerable years. This is especially true for
any required replacement trees whose roots
may require several years to adequately
grow. And relocated trees are also
notoriously difficult to keep alive once
transplanted, unless given good care.
Comment [DW21]: Good idea!
Comment [DW22]: I think a deposit should
be mandatory for all such situations. Gives
the applicants an added incentive to take
good care of the trees. l think Saratoga may
require an $80k deposit Plus in a multi -
project development. does this security
guarantee apply to each proposed new
house? Seems too little for houses selling in
the millions.
Comment [DW23]: This should be
whichever is more. And what happens if
more than 5 trees are potentially affected?
And under Sec.29.10.1025 (5) b, the higher
amount is required.
Comment [DW24]: Again, 1 year we short
of a time. And
M
(h)
development and shall be forfeited in an amount equal to five thousand dollars
($5,000.00) per tree as a civil penalty in the event that a tree or trees required to be
preserved are removed, destroyed or severely damaged.
An applicant with a proposed development which requires underground utilities
shall avoid the installation of said utilities within the dripline of existing trees
whenever possible. In the event that this is unavoidable, all trenching shall be done
using directional boring, air -spade excavation or by hand, taking extreme caution to
avoid damage to the root structure. Work within the dripline of existing trees shall
be supervised at all times by a certified or consulting arborist.
It shall be a violation of this division for any property owner or agent of the owner
to fail to comply with any development approval condition concerning preservation,
protection, and maintenance of any protected tree.
(Ord. No. 2114, 35 ( 11 8 -4 -03)
• Sec. 29.10.1005. - Protection of trees during construction.
(a)
Protective tree fencing shall specify the following:
(1)
(2)
Size and materials: A five (5) or six (6) foot high chain link fencing, mounted on
two -inch diameter galvanized iron posts, shall be driven into the ground to a
depth of at least two (2) feet at no more than 10 -foot spacing. For paving area
that will not be demolished and when stipulated in a tree preservation plan,
posts may be supported by a concrete base.
Area type to be fenced. Type I: Enclosure with chain link fencing of either the
entire dripline area or at the tree protection zone (TPZ), when specified by a
certified or consulting arborist. Type II: Enclosure for street trees located in a
planter strip: chain link fence around the entire planter strip to the outer
branches. Type III: Protection for a tree located in a small planter cutout only
(such as downtown): orange plastic fencing shall be wrapped around the trunk
dill
(3)
(4)
from the ground to the first branch with 2 -inch wooden boards bound securely
on the outside. Caution shall be used to avoid damaging any bark or branches.
Duration of Type I, II, III fencing. Fencing shall be erected before demolition,
grading or construction begins and remain in place until final landscaping is
required. Contractor shall first obtain the approval of the project arborist on
record prior to removing a tree protection fence.
Warning sign. Each tree fence shall have prominently displayed an 8.5 x 11 -inch
sign stating: "Warning —Tree Protection Zone -this fence shall not be removed
and is subject to penalty according to Town Code 29.10.1025 ".
All persons, shall comply with the following precautions:
(1)
(2)
(3)
(4)
(5)
(6)
Prior to the commencement of construction, install the fence at the dripline, or
tree protection zone (TPZ) when specified in an approved arborist report,
around any tree and /or vegetation to be retained which could be affected by
the construction and prohibit any storage of construction materials or other
materials or vehicles inside the fence. The dripline shall not be altered in any
way so as to increase the encroachment of the construction.
Prohibit excavation, grading, drainage and leveling within the dripline of the
tree unless approved by the director.
Prohibit disposal or depositing of oil, gasoline, chemicals or other harmful
materials within the dripline of or in drainage channels, swales or areas that
may lead to the dripline of a protected tree
Prohibit the attachment of wires, signs or ropes to any protected tree.
Design utility services and irrigation lines to be located outside of the dripline
when feasible.
Comment [DW25]: There are a series of
steps throughout this document that the
contractor and arborist have to perform
before certain subsequent functions can be
done. Is there a flow chart anywhere where
all of these steps are checked off as having
been completed and certified? 0r are we
expected to just take everyone's . word that
they were done? I know that proper fencing
and tree protection in several instances
hasn't been performed on the Highlands
project when and where required.
(7)
Retain the services of the certified or consulting arborist for k i
monitoring of the project site and the health of those trees to be preserved.
The certified or consulting arborist shall be present whenever activities occur
which poses a potential threat to the health of the trees to be preserved and
shall document all site kisits,
The director and project arborist shall be notified of any damage that occurs to
a protected tree during construction so that proper treatment may be
administered.
(Ord No. 2114, 541 II 8 -4 -03)
. Sec. 29.10.1010. - Pruning and maintenance.
All pruning of protected trees shall be consistent with the current edition of Best
Management Practices —Tree Pruning, established by the International Society of
Arboriculture (ISA), and any special conditions as determined by the director. For
Comment [DW26]: "periodic" is too open
ended. Once a week, once a year?'
recommend that once every 2 weeks fora
large project where activity on many lots is
ongoing currently.
Comment [DW27]: And where and for how
long will these records be kept?
developments, which require a tree preservation report, a certified or consulting arborist
shall be in reasonablel charge of all activities involving protected trees, including pruning, Comment [l Reasonable by whose
____________- ...... assessment?
cabling and fertilizing if specified.
(1)
(2)
Any public utility installing or maintaining any overhead wires or underground
pipes or conduits in the vicinity of a protected tree shall obtain permission
from the director before performing any work, including pruning, which may
cause injury to a protected tree. (e.g. cable TV/fiber optic trenching, gas, water,
sewer trench, etc.).
Pruning for clearance of utility lines and energized conductors shall be performed
in compliance with the current version of the American National Standards
Institute (ANSI) A300 (Part 1)- Pruning, Section 5.9 Utility Pruning. Using spikes
or gaffs when pruning is prohibited.
4 inches in
(Ord No. 211=$ 441 1I 8 -4 -03)
Comment [DW29]: And where is this 4
inch root diameter to be measured? I don't
think it is a good idea to dig up a root near
the root ball unless one is going to actually
cut there.
• Sec. 29.10.1015. - No limitation of authority.
Nothing in this division limits or modifies the existing authority of the Town
under Division 29 of Title 29 (Zoning Regulations), Title 26 (Trees and Shrubs) or the
Hillside Development Standards and Guidelines to require trees and other plants to be
identified, retained, protected, and /or planted as conditions of the approval of
development. In the event of conflict between provisions of this division and conditions
of any permit or other approval granted pursuant to Chapter 29, Chapter 26 of the Town
Code or Hillside Development Standards and Guidelines, the more protective
requirements shall prevail.
(Ord No. 2114, 54 4 14 8 -4 -03)
Sec. 29.10.1020. - Responsibility for enforcement.
All officers and employees of the Town shall report violations of this division to the
Director of Community Development, who shall enforce this division. Issuance of citations
may be delegated to the following: Director of Parks and Public Works, Code Compliance
Officer, Town Arborist and Town Peace Officers.
(Ord No. 2114, f5I A 8 -4 -03)
Sec. 29.10.1025. - Enforcement — Remedies for violation.
In addition to all other remedies set forth in this code or otherwise provided by law, the
following remedies shall be available to the Town for violation of this division:
(1)
Tree removals in absence of or in anticipation of development. If a violation occurs
in the absence of or prior to proposed development, then discretionary
applications and /or building permit applications will not be accepted or
processed by the Town until the violation has been remedied. Mitigation
measures as determined by the director ma`^I be imposed as a condition of any
subsequent application approval or permit for development on the subject
property.
(2)
Comment [DW30]: This should not be a
"may", but "will'. Directors come and go
and have different histories, experiences,
knowledge and potential conflicts of
interest They also take vacations and leaves
of absence. Enforcement is critical for
compliance. I favor a flow chart as
presented in Desk Item 3 at the PC meeting
of Feh 11, 2015, whereby arbitrary,
capricious, and inconsistent decisions can
be minimized if not avoided completely. A
potential violator should know beforehand
that committing a violation of the tree (and
grading) ordinance will probably have a
certain outcome in penalties. Such a
situation also can eliminate the appearance
of favoritism, bias, and the old: good boy
(3)
U
(5)
Pending development applications. Incomplete applications will not be processed
further until the violation has been remedied. If an application has been
deemed complete, it may be denied by the director or forwarded to the
Planning Commission with a recommendation for denial at the director's
discretion. Mitigation measures as determined by the director may be imposed
as a condition of approval.
Projects under construction.
a.
If a violation occurs during construction, the Town ka) issue a stop work - Comment [DW31I: Again, i worrythat this
-- - - - - -- wording leaves too much discretionwith
order suspending and prohibiting further activity on the property pursuant the Director. Better to make this ^wiu issue"
to the grading, demolition, and /or building permit(s) (including
construction, inspection, and issuance of certificates of occupancy) until a
mitigation plan has been filed with and approved by the director, agreed
to in writing by the property owner(s) or the applicant(s) or both, and
either implemented or guaranteed by the posting of adequate security in
the discretion of the director.
The violation of any provisions in this division during the conduct by any
person of a tree removal, landscaping, construction or other business in
the Town shall constitute grounds for revocation of any business license
issued to such person.
Mitigation plans. A mitigation plan shall include specific measures for the
protection of any remaining trees on the property, and shall provide for the
replacement of each tree that was removed in the same location as the
removed tree or as determined by the Director of Community Development, or
by the Director of Parks and Public Works, if replacement is to occur on public
property. The replacement ratio shall be at a greater ratio than that required in
accordance with the standards set forth in section 29.10.0985 of this division.
Civil penalties.
(7)
Notwithstanding section 29.20.950 relating to criminal penalty, any person
found to have violated section 29.10.0965 shall be liable to pay the Town a civil
penalty as prescribed in subsections (a) through (d).
a.
As part of a civil action brought by the Town, a court may assess against any
person who commits, allows, or maintains a violation of any provision of
this division a civil penalty in an amount not to exceed five thousand
comment [DW35]:Again,two years istoo
dollars perviolation�l - --------------- -.
-.- Comment[DW32]:
--------- - - - - -- -------- - - ---_ . -- - - - - -- - - - -- -....
b
- -- Comment [DW33]: Perhaps "violation"
The cost of enforcing this division, which shall include kill costs, staff time, and
should be defined somewhere. Is removing
Where the violation has resulted in removal of a protected tree, the civil
2trees on one lot,two violations? is doing
Comment [DW36]: Since the Town can
excessive trimming on one tree for 3
penalty shall be in an amount not to exceed five thousand dollars per tree
consecutive days, one or3violations?
unlawfully removed, or the replacement value of each such tree, whichever
a violation (Sec. 12.40.035), staff should
amount is �ighel. Such amount shall be payable to the Town and
-,.= Comment[DW34]: "Higherls good
deposited into the street tree deposit account. Replacement value for the
chargeable administrative costs over and
beyond normal costs (which are covered by
purposes of this section shall be determined utilizing the most recent
filing fees) when making inspections,
edition of the Guide for Plant Appraisal, as prepared by the Council of
answering calls, emails, etc, about possible
Tree and Landscape Appraisers.
violations. All costs of enforcing code should
be documented and charged, just like an
If the court or director directs a replacement tree or trees to be planted as
part of remedy to the violation, the trees shall be permanently maintained
in a good and healthy condition. The property owner shall execute a two -
bearlwrittenmaintenanceagreementwiththeTown. ,.-
comment [DW35]:Again,two years istoo
_...-..________....____._.._______ __._..
short of a time period. Two years is better
d.
than 1 year as specified in Sec. 29.10.1000
The cost of enforcing this division, which shall include kill costs, staff time, and
(3)(d) but not long enough when it can
takesummer- overwatering 3 -s years to kill
------- ""'- ------- - - - -'-
attorneys' fees.
anadve oak tree.
Comment [DW36]: Since the Town can
collect all expenses associated with policing
a violation (Sec. 12.40.035), staff should
Injunctive relief. A civil action may be commenced to abate, enjoin, or otherwise
keep track, with actual time cards, of all
compel the cessation of such violation.
chargeable administrative costs over and
beyond normal costs (which are covered by
filing fees) when making inspections,
answering calls, emails, etc, about possible
Costs. In any civil action brought pursuant to this division in which the Town
violations. All costs of enforcing code should
be documented and charged, just like an
prevails, the court shall award to the Town all costs of investigation and
attorney would charge a client These costs
should include full rate: salary, benefits, gas,
preparation for trial, the costs of trial, reasonable expenses including overhead
etc. The citizens of Los Gatos should not be
asked to subsidize policing actions of illegal
activities.
and administrative costs incurred in prosecuting the action, and reasonable
attorney fees.
(Ord No. 2114, 551, II, 8 -4 -03)
. Sec. 29.10.1030. - Fees.
The fee, as adopted by Town Resolution, prescribed therefore in the municipal fee
schedule shall accompany the removal permit application submitted to the Town for
review and evaluation pursuant to this division.
(Ord. No. 2114, 551, Il, 8 -4 -03)
. Sec. 29.10.1035. - Severability.
If any provision of this division or the application thereof to any person or circumstance
is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect
any other provision of this division which can be given effect without the invalid
provision or application, and to this end the provisions of this division are declared to be
severable.
(Ord No. 2114, 53I I( 8 -4 -03)
. Sec. 29.10.1045. - Appeals.
Any person seeking the director's approval to remove a protected tree pursuant to this
division who is aggrieved by a decision of the director may appeal such decision in
accordance with the procedures set forth in section 29.20.255 of the Town Code.
(Ord No. 2114, 557, 118-4-03)