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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. \� : .� �- 7 fit \�x \� .. s �ƒ z � ± + ± )� ƒ ��® a r /{ ƒ> ^� . \ƒ §�\ .: ¥� 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)