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18. Ord. 07-2003 (trees) DRAFT Proposed text is underlined. Deleted text is struck through ORDINANCE NO. 07-2003 AN ORDINANCE OF THE CITY OF CUPERTINO, AMENDING CHAPTER 14.18 OF THE CUPERTINO MUNICIPAL CODE RELATED TO PROTECTED TREES THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: Chapter 14.18 of the Municipal Code of Cupertino is hereby amended to read as follows: CHAPTER 14.18: PROTECTED TREES Section 14.18.010 Purpose. 14.18.020 Definitions. 14.18.025 Actions Prohibited. 14.18.030 Retention promoted. 14.18.035 Protected trees. 14.18.040 Heritage tree designation. 14.18.050 Heritage tree list. 14.18.060 Plan of protection. 14.18.070 Recordation. 14.18.080 Heritage Tree Identification tag. Ordinance No. 07-2003 14.18.130 Enforcing authority. 14.18.140 Exemptions. 14.18.145 Tree Management Plan 14.18.150 Application and Approval Authority for Tree Removal permit. 14.1 8. 160 Director to inspect. 14.18.170 Application Requirements. 14.18.175 Noticing 14.18.180 Review and determination of application. 14.18.185 Tree Replacement. 14.18.188 Retroactive tree removal permit.. 14.18.1 90 Protection during conservation. 14.18.200 Protection plan before permit granted. 14.18.220 Notice of action on permit-Appeal. 14.18.230 Penalty. 14.18.010 Purpose. In enacting this chapter, the City of Cupertino recognizes the substantial economic, environmental and aesthetic importance of its tree population. Protected trees are considered a valuable asset to the community. The protection of such trees in all zoning districts is intended to preserve this valuable asset. The City finds that the preservation of protected trees on private and public property, and the protection of all trees during construction, is necessary for the best interests of the City and of the citizens and public thereof, in order to: A. Protect property values; B. Assure the continuance of quality development; C. Protect aesthetic and scenic beauty; 2 Ordinance No. 07-2003 D. Assist in the absorption of rain waters, thereby preventing erosion of top soil, protecting against flood hazards and the risk of landslides; E. Counteract air pollutants by protecting the known capacity of trees to produce pure oxygen from carbon dioxide; F. Maintain the climatic balance (e.g., provide shade); G. Help decrease potential damage from wind velocities; For the above reasons, the City finds it is in the public interest, convenience and necessity to enact regulations controlling the care and removal of protected trees within the City in order to retain as many trees as possible, consistent with the individual rights to develop, maintain and enjoy private and public property to the fullest possible extent. (Ord. 1573,92,1991; Ord. 1543,92,1991) 14.18.020 Definitions. Unless otherwise stated, the following definitions pertain to this chapter. A. "City" means the City of Cupertino situated in the County of Santa Clara, California. B. "Developed residential" means any legal lot of record, zoned single-family, duplex, agricultural residential and residential hillside, with any structure (principal or accessory) constructed thereon. C. "Development application" means an application for land alteration or development, including but not limited to subdivision of property, rezoning, architectural and site approval, two-story residential permit, minor residential permit, planned unit development, variance, and use permit. D. "Heritage tree" means any tree or grove of trees which, because of factors including, but not limited to, its historic value, unique quality, girth, height or species, has been found by the Planning Commission to have a special significance to the community. E. "Owner" shall include the legal owner of real property within the City, and any lessee of such owner. F. "Person" shall include an individual, a firm, an association, a corporation, a co- partnership, and the lessees, trustees, receivers, agents, servants and employees of any such person. 3 Ordinance No. 07-2003 G. "Private property" shall include all property not owned by the City or any other public agency. H. "Public property" includes all property owned by the City or any other public agency. I. "Protected tree" means any class of tree specified in Section 14.18.035. J. "Tree removal" means any ofthe following: (1) Complete removal, such as cutting to the ground or extraction, of a protected tree or (2) Severe pruning, which means the removal of more than one-fourth of the functioning leaf and stem area of a protected tree in any twelve-month period as determined by the Community Development Director. (Ord. 1886, (part), 2001; Ord. 1835, (part), 1999; Ord. 1810, (part), 1999; Ord. 1715, (part), 1996; Ord. 1573,93,1991; Ord. 1543,93,1991) 14.18.25 Actions Prohibited A. It is unlawful to remove or kill any protected tree; and B. It is unlawful to remove any protected tree in any zoning district without first obtaining a tree removal permit. 14.18.030 Retention Promoted. Protected trees are considered an asset to the community and the pride of ownership and retention of these species shall be promoted. The Director of Community Development shall conduct an annual review ofthe status of heritage trees and report the findings to the Planning Commission. (Ord. 1715, (part), 1996; Ord. 1543,94.1,1991) 14.18.035 Protected Trees. 4 Ordinance No. 07-2003 Except as otherwise provided in Section 14.18.140, Exemptions, the following trees shall not be removed from private or public property, including street trees subject to Chapter 14.12 of the Cupertino Municipal Code, without first obtaining a tree removal permi t: A. Heritage trees in all zoning districts. B. All trees of the following species (See Appendix B) that have a minimum single- trunk diameter often inches (31-inch circumference) or minimum multi-trunk diameter of 20 inches ( 63-inch circumference) measured 4-112 feet from natural grade: 1. Quercus (native oak tree species), including: a. Quercus agrifolia (Coast Live Oak) b. Quercus lobata (Valley Oak) c. Quercus kelloggii (Black Oak) d. Quercus douglasii (Blue Oak) e. Quercus wislizeni (Interior Live Oak) 2. Aesculus californica (California Buckeye) 3. Acer macrophyllum (Big Leaf Maple) 4. Cedrus deodara (Deodar Cedar) 5. Cedrus atlantica 'Glauca' (Blue Atlas Cedar) 6. Umbellularia californica (Bay Laurel or California Bay) 7. Platanus racemosa (Western Sycamore) C. Any tree required to be planted or retained as part of an approved development application, building permit, tree removal permit or code enforcement action in all zoning districts. D. Approved privacy proteCtion planting in R-1 zoning districts. 14.18.040 Heritage tree designation. 5 Ordinance No. 07-2003 Application for designation of a heritage tree may only be initiated by the owner of property on which the tree is located, unless the tree is located on public or quasi-public property. Any person may apply for designation of a heritage tree if the tree(s) are located on public or quasi-public property. An application for a heritage tree designation shall include: I. Assessor's parcel number of the site; 2. Description detailing the proposed heritage tree's special aesthetic, cultural, or historical value of significance to the community; and 3. Photographs of the tree(s). Application for designation of a heritage tree shall be referred to the Planning Commission for review and determination in accordance with Section 19.124 of the Cupertino Municipal Code. The Planning Commission, may, by resolution, designate a tree or grove of trees as a heritage tree(s). (Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543, S 4.2,1991) 14.18.050 Heritage Tree List. A heritage tree list shall be created and amended by resolution. The list shall include the reason for designation, tree circumference, species name, common name, location and heritage tree number. (Ord. 1543, S 4.3, 1991) 14.18.060 Plan of Protection. As part of a development application: A. The approval authority shall adopt a maintenance plan for protected trees. It shall be the property owner(s)' responsibility to protect the trees. B. Privacy protection planting in R-l zoning districts shall be maintained. Landscape planting maintenance includes irrigation, fertilization and pruning as necessary to yield a growth rate expected for a particular species. Where privacy protection planting dies it must be replaced within thirty days with the location, size and species described in Ordinance No. 1799 (privacy protection) and its appendix. The affected property owner, with privacy protection planting on his/her lot, is required to maintain the required planting and shall be required to comply with Section 14.18.070. (Ord. 1810, (part), 1999; Ord. 1630, (part), 1993; Ord. 1543, SS 4.4,4.5, 1991) 6 Ordinance No. 07-2003 14.18.070 Recordation. All protected trees required to be retained as part of a development application under Section 14.18.035C, except for trees on public property, shall have retention information placed on the property deed via a conservation easement in favor of the City, private covenant, or other method as deemed appropriate by the Director. The recordation shall be completed by the property owner prior to final map or building permit issuance, or at a time as designated by the Director of Community Development when not associated with a final map or building permit issuance. . (Ord. 1573, S 4.6, 1991; Ord. 1543, S 4.6, 1991 ) 14.18.080 Heritage Tree Identification Tag. Heritage trees shall have on them an identification tag, purchased and placed by the City, inscribed with the following information: CITY OF CUPERTINO HERITAGE TREE NO. _ is protected by the Protected Trees Ordinance. Do not prune or cut before contacting the City Planning Department at (408) 777-3308. (Ord. 1543, S 4.7,1991) 14.18.130 Enforcing Authority. The Director of Community Development, or hislher authorized representative, shall be charged with the enforcement of this chapter. (Ord. 1543, S 6.1, 1991) 14.18.140 . Exemptions. The following situations do not require a tree removal permit prior to removal: A. Removal of a protected tree in case of emergency caused by the hazardous or dangerous condition of a tree, requiring immediate action for the safety of life or property (e.g., a tree about to topple onto a principle dwelling due to heavy wind velocities, a tree deemed unsafe, or a tree having the potential to damage existing or proposed essential structures), upon order of the Director of Community Development, or any member of 7 Ordinance No. 07-2003 the sheriff or fire department. However,a subsequent application for tree removal must be filed within five working days as described in Sections 14.18.150--14.18.170 of this chapter. The Director of Community Development will approve the retroactive tree removal permit application and may require tree replacements in conjunction with the approval. No application fee or other approval process shall be required in this situation. B.Dead trees, in the opinion of the Director of Community Development. However, a subsequent application for a tree removal must be filed within five working days as described in Section 14.18.150 - 14.18.170 of this chapter. The Director of Community Development will approve the retroactive tree removal permit application and may require tree replacements in conjunction with the approval. No application fee or other approval process shall be required in this situation. C. Thinning out/removing of trees in accordance with a recorded tree management plan that has been approved in accordance with Section 14.18.145. No tree removal permit is required. D. Public utility actions, under the jurisdiction of the Public Utilities Commission of the State of California; as may be necessary to comply with their safety regulations, or to maintain the safe operation of their facilities. (Ord. 1835, (part), 1999; Ord. 1715, (part), 1996; Ord. 1630, (part), 1993; Ord. 1543,97.1,1991) 14.18.145 Tree Management Plan A tree management plan may be approved for a property that includes criteria for the removal of certain trees in the future by anticipating the eventual growth of trees on the property and specifying a time frame in which the trees may require removal to prevent overcrowding of trees. The property owner shall have retention information placed on the property in accordance with Section 14.18.070, referring to the approved tree management plan. For a tree management plan associated with a development application, the tree management plan shall be approved in conjunction with the approval of a landscape plan on the subject property. The tree management plan shall include the following: A. A tree plan indicating all existing trees to be retained and all new trees to be planted that are part of the approved landscape plan. B. Labeling of the species, size in DBH at planting time or at time of tree management plan approval, location and eventual growth size of each tree on the plan. 8 Ordinance No. 07-2003 C. A written explanation ofthe specific tree(s) to be removed to prevent overcrowding, including the eventual growth size in DBH at which time the tree is to be removed, and a time frame in which the tree(s) will reach the eventual growth size. The tree management plan shall be approved by the authority approving the landscape plan prior to recordation of the tree management plan. The Director of Community Development shall review and approve the tree management plan where no landscape plan is required. Trees that are listed to be removed in the tree management plan may be removed within the specified time frame per the tree management plan without a tree removal permit, except for trees designated as heritage trees. No heritage trees shall be permitted to be removed in conjunction with an approved tree management plan. 14.18.150 Application and Approval Authority for Tree Removal Permit. A. No person shall directly or indirectly remove or cause to be removed any protected tree without first obtaining a tree removal permit, unless such tree removal is exempt per Section 14.18.140. Application for a tree removal permit shall be filed with the Department of Community Development on forms prescribed by the Director of Community Development and shall state the number and location ofthe trees to be removed, and the reason for removal of each. B. Applications for protected tree removal shall be referred to the Director of Community Development for final review and determination in accordance with Section 14.18.220 and Chapter 19.124, except for heritage tree removals and tree removals in conjunction with development applications. The Director of Community Development may approve, conditionally approve, or deny the application for a tree removal permit. A tree replacement requirement may be required in conjunction with the tree removal permit. The applicable tree removal permit fee shall apply. . C. Application for tree removals in conjunction with a development application shall be considered by the approval authority concerning the same property as the affected tree removal permit application, and the determination on the tree removal permit shall be made concurrently by the approval authority. D. Application for removal of a heritage tree shall be referred to the Planning Commission for final review and determination in accordance with Section 14.18.220 and Chapter 19.124.(Ord. 1630, (part), 1993; Ord. 1573,98.1 (part), 1991; Ord. 1543,98.1 (part), 1991) 14.18.160 Director to Inspect. 9 Ordinance No. 07-2003 Upon receipt of an application for removal of a protected tree, the Director of Community Development or his/her authorized representative will, within fourteen days, inspect the premises and evaluate the request pursuant to Section 14.18.180 of this chapter. Priority of inspection shall be given to those requests based on hazard or disease. The Director of Community Development may refer any such application to another department or to the Planning Commission or an appropriate committee of the City for a report and recommendation. Where appropriate, the Director of Community Development may also require the applicant, at his/her own expense, to furnish a report from an certified by the International Society of Arboriculture. (Ord. 1573, 98.1 (part), 1991; Ord. 1543,98.1 (part), 1991) 14.18.170 Application Requirements. A request for removal of any heritage or protected tree shall include the following: A. Application information. Application for a tree removal permit shall be available from and filed with the Community Development Department and shall contain the following information, unless waived by the Director of Community Development: I. A written explanation of why the tree(s) should be removed; 2. Photograph(s) of the tree(s); 3. An arborist report from an arborist certified by the International Society of Arboriculture when required by the Director of Community Development; 4. Signature of the property owner and homeowner's association (when applicable) with proof of a vote of the homeowner's association. 5. Replanting plan 6. Other information deemed necessary by the Director of Community Development to evaluate the tree removal request; 7. Permit fee, where applicable; 8. Tree survey plan indicating the number, location(s), variety and size (measured four and a half feet above grade) oftree(s) to be removed. 14.18.175 Notice and Posting A. Notice of any decision of the Director of Community Development and Design Review Committee shall be given in the same manner as provided in Section 19.28.1 OOB. B. Notice of any public hearing under this chapter shall be given in the same manner as provided in Chapter 19.124 of the Cupertino Municipal Code. However, notice 10 Ordinance No. 07-2003 of such hearing shall be mailed to each owner of record of real property within five hundred feet ofthe exterior boundary of the property for which the application is sought or two properties in each direction from the exterior boundary of the property, whichever provides for a greater number of notices to surrounding property owners. C. A notice shall be posted on any tree or property on which the tree is located for which a tree removal application has been submitted. The notice shall be posted ten days prior to any public hearing considering the tree removal application or the decision of the Director of Community Development or Design Review Committee. D. Where approval of a tree removal permit is granted by the City, the property owner shall post the tree removal permit on site until the tree is removed or shall present proof of the tree removal permit upon request. 14.18.180 Review and Determination of Application. A. The approval authority shall approve a tree removal permit only after making at least one of the following findings: I. That the tree or trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on-site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; 2.That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not typically experienced by owners of similarly zoned and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). 3. That the protected tree(s) are a detriment to the subject property and cannot be adequately supported according to good urban forestry practices due to the overplanting or overcrowding of trees on the subject property. B. The approval authority may refer the application to another department or commission for a report and recommendation. C. The approval authority shall either approve, conditionally approve or deny the application. II Ordinance No. 07-2003 D. The approval authority may require a tree replacement requirement in conjunction with a tree removal permit. (Ord. 1573, S 9.1,1991; Ord. 1543, S 9.1,1991) Section 14.18.185 Tree Replacement A. The approval authority may impose the following replacement standards for approval of each tree to be removed in conjunction with an approved tree removal permit, unless deemed otherwise by the approval authority: Replacement trees, of a species and size as designated by the approval authority and consistent with the replacement value of each tree to be removed, shall be planted on the subject property on which the tree(s) are to be removed. The approval authority shall work with the applicant/property owner of the tree removal permit to determine the location ofthe replacement tree(s). Table A may be used as a basis for this requirement. The person requesting the tree removal permit shall pay the cost of purchasing, planting and maintaining the replacement trees. B. If a replacement tree for the removal of a non-heritage tree or tree with trunk size equal to or less than 36" cannot be reasonably planted on the subject property, an in-lieu tree replacement fee based upon the purchase and installation cost of the replacement tree as determined by the Director of Community Development shall be paid to the City's tree fund to: 1. Add or replace trees on public property in the vicinity of the subject property; or 2. Add trees or landscaping on other City property. C. For removal of a heritage tree or tree with a trunk size greater than a 36 inches, the in-lieu tree replacement fee shall be based upon the valuation of the removed tree by using the most recent edition of the ISA Guide for Plant Appraisal published by the Council of Tree and Landscape Appraisers. Table A - Replacement Tree Guidelines Trunk Size of Removed Tree Replacement Trees (Measured 4 Vi feet above grade) Up to 12 inches One 24" box tree Over 12 inches and up to 18 inches Two 24" box trees Over 18 inches and up to 36 inches Two 24" box trees or One 36" box tree Over 36 inches One 36" box tree 12 Ordinance No. 07-2003 I Heritage tree One 48" box tree 14.18.188 Retroactive Tree Removal An application for a retroactive tree removal shall be required for any protected tree removed prior to approval of a tree removal permit. The application shall be filed with the Department of Community Development on forms prescribed by the Director of Community Development and shall be subject to the requirements of a tree removal permit. The application shall pay a retroactive tree removal permit fee. 14.18.190 Protection During Construction. Protected trees and other trees/plantings required to be retained by virtue of a development application, building permit, or tree removal permit shall be protected during demolition, grading and construction operations. The applicant shall guarantee the protection of the existing tree(s) on the site through a financial instrument acceptable to the Director of Community Development. (Ord. 1543, S 10.1,1991) 14.18.200 Protection Plan Before Permit Granted. A. A plan to protect trees described in Section 14.18.190 shall be submitted to the Director of Public Works and to the Director of Community Development prior to issuance of a demolition, grading or building permit. The plan shall be prepared and signed by a licensed landscape architect or arborist certified by the International Society of Arboriculture and shall be approved by the Director of Community Development. The Director of Community Development shall evaluate the tree protection plan based upon the tree protection standards contained in Appendix A at the end of this chapter. B. The Director of Community Development may waive the requirement for a tree protection plan both where the construction activity is determined to be minor in nature (minor building or site modification in any zone) and where the proposed activity will not significantly modify the ground area within the drip line or the area immediately surrounding the drip line of the tree. The Director of Community Development shall determine whether the construction activity is minor in nature and whether the activity will significantly modify the ground area around the tree drip line. (Ord. 1543, S 10.2, 1991 ) 14.18.220 Notice of Action on Permit-Appeal. A. Notice of the decision on an application for a protected tree removal permit by the approval authority, shall be mailed to the applicant. 13 Ordinance No. 07-2003 B. Any decision made by the Director of Community Development or Design Review Committee may be appealed in accordance with Chapter 19.134. C. Any decision made by the Planning Commission may be appealed to the City Council in accordance with Chapter 19.136. Such decision may be appealed to the City Council by filing a written notice of appeal with the City Clerk within ten working days after the mailing of such notice. D. The City Clerk shall notify the applicant ofthe date, time and place for hearing the appeal. The City Council may affirm, reverse, or modify the decision of the Director of Community Development or Planning Commission, and its decision shall be final. (Ord. 1573, ~ 11.1, 1991; Ord. 1543, ~ 11.1, 1991) 14.18.230 Penalty. Violation of this chapter is deemed a misdemeanor unless otherwise specified. Any person or property owners, or his agent or representative who engages in tree cutting or removal without a valid tree removal permit is guilty of a misdemeanor as outlined in Chapter 1.12 of this code and/or may be required to comply with Sections 14.18.150, 14.18.170. Notwithstanding any other provisions of this section, the unauthorized removal of a tree planted solely for privacy protection purposes pursuant to Section 14.18.060 C shall constitute an infraction. (Ord. 1810, (part), 1999; Ord. 1731, (part), 1996; Ord. 1543, ~ 12.1, 1991) APPENDIX A STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND CONSTRUCTION OPERATIONS 14 Ordinance No. 07-2003 The purpose of this appendix is to outline standards pertaining to the protection of trees described in Section 14.18.200 of Chapter 14.18. The standards are broad. A licensed landscape architect or International Society of Arboriculture certified arborist shall be retained to certify the applicability of the standards and develop additional standards as necessary to ensure the property care, maintenance, and survival of trees designated for protection. Standards I. A plot plan shall be prepared describing the relationship of proposed grading and utility trenching to the trees designated for preservation. Construction and grading should not significantly raise or lower the ground level beneath tree drip lines. If the ground level is proposed for modification beneath the drip line, the architect/arborist shall address and mitigate the impact to the tree(s). 2. All trees to be preserved on the property and all trees adjacent to the property shall be protected against damage during construction operations by constructing a four-foot- high fence around the drip line, and armor as needed. The extent of fencing and armoring shall be determined by the landscape architect. The tree protection shall be placed before any excavation or grading is begun and shall be maintained in repair for the duration of the construction work. 3. No construction operations shall be carried on within the drip line area of any tree designated to be saved except as is authorized by the Director of Community Development. 4. If trenching is required to penetrate the protection barrier for the tree, the section of trench in the drip line shall be hand dug so as to preclude the cutting of roots. Prior to initiating any trenching within the barrier approval by staff with consultation of an arborist shall be completed. 5. Trees which require any degree offill around the natural grade shall be guarded by recognized standards of tree protection and design of tree wells. 6. The area under the drip line of the tree shall be kept clean. No construction materials nor chemical solvents shall be stored or dumped under a tree. 7. Fires for any reason shall not be made within fifty feet of any tree selected to remain and shall be limited in size and kept under constant surveillance. 8. The general contractor shall use a tree service licensee, as defined by California Business and Professional Code, to prune and cut off the branches that must be removed during the grading or construction. No branches or roots shall be cut unless at first reviewed by the landscape architect/arborist with approval of staff. 15 Ordinance No. 07-2003 9. Any damage to existing tree crowns or root systems shall be repaired immediately by an approved tree surgeon. 10. No storage of construction materials or parking shall be permitted within the drip 'line area of any tree designated to be saved. II. Tree protection regulations shall be posted on protective fencing around trees to be protected. 16 Ordinance No. 07-2003 APPENDIX B REFERENCE PHOTOS OF SPECIMEN TREES PROTECTED IN ACCORDANCE WITH SECTION 14.18.035 EXAMPLES OF SOME OAK TREE VARIETIES VALLEY OAK (Quercus lobata) COAST LIVE OAK (Quercus agrifolia) BLUE OAK (Quercus douglasii) Ordinance No. 07-2003 CALIFORNIA BUCKEYE (Aesculus californica) BLACK OAK (Quercus kelloggii) INTERIOR LIVE OAK (Quercus wislizeni) 18 Ordinance No. 07-2003 BIG LEAF MAPLE CAcer macrophyllum) DEODAR CEDAR C Cedrus deodara) 19 Ordinance No. 07-2003 BLUE ATLAS CEDAR (Cedrus atlantic a 'Glauca') 20 Ordinance No. 07-2003 WESTERN SYCAMORE (Platanus racemosa) BAY LAUREL OR CALIFORNIA BAY (Umbellularia californica) 21 Ordinance No. 07-2003 This ordinance shall take effect and be in force thirty (30) days after its passage. INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 5th of June 2007 and ENACTED at a regular meeting of the City Council of the City of Cupertino the 19th day of June 2007, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 22