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21. Tree fees 1'1/.,..... ~~ ,.. .;j CITY OF CUPEIQ"INO City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 Fax: (408) 777-3333 Community Development Department Summary Agenda Item No. JJ Agenda Date: August 21, 2007 APPLICATION SUMMARY: Consider establishing the following fees related to the City's new Protected Trees Ordinance (Chapter 14.18 of the Cupertino Municipal Code) and adopting a resolution adding these fees to the fee schedule: a) Establish a City tree fund in which in-lieu tree replacement fees based on the installation and purchase cost of replacement trees are to be deposited and determine how to implement use of the tree fund (e.g., if the Public Work Dept. or a separate subcommittee will oversee the use of the fund). b) Establish a retroactive tree removal application fee of $2,662, and lower the tree removal application fees to $150 for the first tree removal request and $75 for each additional tree removal request on the same property for applicants who apply to the City prior to removing the tree. c) Establish a tree management plan application fee of $1,041. RECOMMENDATION: The Planning Commission recommends that the City Council establish the fees related to the City's Protected Trees Ordinance and adopt the model resolution attached as Exhibit A to include the fees into the City's 2007-2008 Fee Schedule. BACKGROUND: On June 5, 2007, the City Council introduced the tree ordinance. However, except for the in-lieu tree replacement fees, the Council deferred determination on the establishment of all other fees until after the adoption of the tree ordinance. The Council adopted the ordinance including language that' specified in-lieu tree replacement fees are based upon the purchase and installation cost of replacement trees. Therefore, the in-lieu fee has already been established and will not need to be included in the fee schedule, but will require a procedure on how to administer the use of the fees once they are deposited into a City tree fund. On July 19, 2007, the new tree ordinance became effective, which was 30 days from the date of the second reading of the ordinance that occurred on June 19,2007. Application: Tree Ordinance Fees Page 2 DISCUSSION: Establishment and acceptance of these fees into the City's fee schedule is critical at this time because the new tree ordinance is now effective without a procedure to implement the use of in-lieu tree replacement fees, and without application fees to address the more simplified tree removal application process, retroactive tree removals and tree management plans. The following is a list of the Planning Commission's recommendations on fees to fully enact the tree ordinance: 1. Establish a City tree fund in which in-lieu tree replacement fees are to be deposited and determine who is to oversee use of the city tree fund. Options that the Council may consider include allowing the Public Works Department or a subcommittee established by the City Council to oversee the use of the funds. The ordinance as adopted already specifies what the funds are to be used for, which include adding or replacing trees on public property in the vicinity of the subject property, or adding trees or landscaping on other City property. 2. Establish a retroactive tree removal fee of $2,536, and lower the tree removal application fee to $150 for the first tree removal request and $75 for each additional tree removal request on a property. The retroactive tree removal fee is a new fee that will be required when a protected tree has been removed prior to approval of a tree removal permit. This would serve as a U stick" approach to discourage such tree removals. The retroactive tree removal fee is a cost recovery fee that is based upon the previous Planning Commission tree removal application fee. Staff recommends that if the Council decides to apply this fee as the retroactive tree removal fee, that the fee amount of $2,662 be used, which is based upon the current Planning Commission tree removal application fee that became effective on July 1,2007 as part of the updated fee schedule. The lower tree removal application fees are proposed to serve as an incentive or U carrot" approach for property owners who receive approval of a tree removal permit prior to removing a protected tree. At the May 1, 2007 City Council meeting, the Council expressed concern about lowering these fees because they would not be based upon cost recovery. The newly adopted ordinance simplified the previous tree removal application process by now allowing many tree removals to be reviewed and determined at staff level. Therefore, staff believes that the lower tree removal application fees as proposed are reasonable. 3. Establish a tree management plan of $992 and include this fee into the fee schedule. This is a new application fee that would need to be established. Per the new ordinance, the tree management plan fee allows for a property owner to apply for approval of a tree management plan to remove trees on his/her property in the future within a specified time frame as indicated in the plan to prevent the overcrowding of trees on the property. The proposed fee, as a cost recovery fee, is Application: Tree Ordinance Fees Page 3 based upon the fee for a Director's Minor Modification application because the review process is similar to this type of application. The proposed $992 fee was recommended by the Planning Commission prior to adoption of the updated fee schedule. Staff recommends that the updated fee of $1,041 for a Director's Minor Modification application that became effective on July 1, 2007 be used as the tree management plan application fee to maintain consistency with the current fee schedule. Enclosures: Exhibit A - Model Resolution Exhibit B - Minutes to the May 1, June 5 and June 19 (draft) City Council meetings Exhibit C - Chapter 14.18, Protected Trees Ordinance Prepared by: Aki Honda Snelling, Senior Planner Approved by: ~ David W. Knapp City Manager RESOLUTION NO: ~1- lif S- DRAFT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING RESOLUTION NO. 07-056 TO AMEND SCHEDULE C OF THE FEE SCHEDULE WHEREAS, the State of California requires fees charged for service rendered not to exceed the cost of delivering said services; and WHEREAS, a public hearing has been held to review user fees; and WHEREAS, the City Council of the City of Cupertino has established guidelines for setting user fees; NOW, THEREFORE, BE IT RESOLVED that: 1. Approve amended user fees per attached Schedule C. 2. User fees are effective October 22,2007. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 21st day of August 2007 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino CITY OF CUPERTINO Resolution No. 07- IL.{5", August 21, 2007 *Fees Effective October 22, 2007 Schedule C - Definition of Planning Fee Services *New fees effective October 22,2007. All other fees to remain the same. Fees with strikethroughs are eliminated. General Plan Amendment Authorization - Major $3,883.00 General Plan Amendment Authorization - Minor $1,941.00 Study Session $3,883.00 General Plan Amendment - Major $12,096.00 General Plan Amendment - Minor $6,048.00 Development Agreement $15,994.00 Zoning - Minor $2,995.00 Zoning < one acre $5,990.00 Zoning one to five acres $9,106.00 Zoning> five acres $12,408.00 Tentative Map $13,200.00 Use Permit - Major $13,200.00 Exception $2,325.00 Amendment to Development Approval $3,525.00 Hillside Exception $5,847.00 Parcel Map $6,165.00 Use Permit - Minor $6,165.00 Planning Commission - Architectural and Site Approval $6,165.00 Planning Commission Interpretation $3,080.00 Plunning Commission Tree Remoyul $2,662.00 Environmental Impact Report (Plus State & County Filing Fees) $23,093.00 Negative Declaration - Major (Plus State & County Filing Fees) $3,553.00 Negative Declaration - Minor (Plus State & County Filing Fees) $1,776.00 Tree Removal Permit * First Tree Each Additional Tree $150.00 $75.00 Retroactive Tree Removal Permit * $2,662.00 Tree Management Plan * $1,041.00 For all projects requiring more than 48 hours of staff time, applicants will be charged at the hourly rate of $118.00 per hour, which includes staff time, overhead and administrative oversight. Categorical Exemption (Plus County Filing Fee) $206.00 Design Review Committee - Architectural and Site Approval $2,982.00 R-l Design Review $2,070.00 R-l Exception $2,325.00 Sign Exception $1,743.00 Fence Exception $593.00 Director - Variance $1,488.00 Director - Minor Modification $1,041.00 Director Tree Removal $860.00 Minor Residential Permit $1,041.00 Temporary Use Permit $1,189.00 Temporary Sign Permit $174.00 Sign Program $596.00 Appeal/Petitions for Reconsideration $156.00 Zoning, Planning, Municipal Code (Building Permit Fees) Commerical/Multi -Family Residential Single Family $0.24/sq. ft. $0. 13/sq. ft. Wireless Master Plan Fee: Equipment Mount on Existing Light Utility Pole $5.4l/mount Wireless Master Plan Fee: Other Personal Wireless Facility $1,08l.00/facility Housing Mitigation In-Lieu Fees Residential Office/IndustriallHotel/Retail/R&D P(MP) $2.50/sq. ft. $4.75/sq. ft. 2.38/sq. ft. Stevens Creek Boulevard Specific Plan Fee $.044/sq. ft. Zoning Verification Letter $157.00 For all projects requiring more than 48 hours of staff time, applicants will be charged at the hourly rate of $118.00 per hour, which includes staff time, overhead and administrative oversight. May 1, 2007 Cupertino City Council Page 4 CONSENT CALENDAR Lowenthal/Sandoval moved and seconded to approve the items on the Consent Calendar as recommended. Ayes: Kwok (abstained on item 6), Lowenthal, Mahoney, Sandoval, and Wang. Noes: None. 6. Approve the minutes from the April 17 City Council meeting. 7. Adopt resolutions accepting Accounts Payable for April 13 and 20, Resolution Nos. 07- 070 and 07-071. 8. Adopt a resolution accepting Payroll for April 20, Resolution No. 07-072. 9. Adopt a resolution declaring brush growing on certain described properties to be a public nuisance and setting hearing for June 5 for objections to proposed removal, Resolution No. 07-073. ITEMS REMOVED FROM THE CONSENT CALENDAR (above) - None RECESS - the Council was in recess from 8:30 p.m. until 8:40 p.m. PUBLIC HEARINGS 10. Consider adopting a resolution approving housing mitigation fees. (Continued from April 3). Under Postponements, Mahoney/Lowenthal moved and seconded that this item be continued to June 5. The motion carried unanimously. 11. Consider a Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees), Application No. MCA-2006-02, City of Cupertino, Citywide. (Continued from April 3). Conduct the first reading of Ordinance No. 07-2001: "An Ordinance of the City of Cupertino Amending Chapter 14.18 of the Municipal Code related to Protected Trees." The City Clerk distributed: (1) a letter dated May 1 from the Silicon Valley Association of Realtors regarding Heritage and Specimen Trees, offering suggestions for the proposed ordinance, and print-outs of the PowerPoint presentation by staff. Councilmember Lowenthal noted that he had trees on his property that could be affected by this ordinance and he questioned whether he had a conflict of interest. The City Attorney stated that there was an exception to the conflict of interest code that said if a Councilmember was in the same category as a large segment of the community it was not a conflict of interest. May 1, 2007 Cupertino City Council Page 5 Senior Planner Aki Snelling presented the staff report using a PowerPoint presentation. The principal concerns were: Trees removed without first seeking permission; need to simplify the approval authority and process; evaluation of the list of protected trees; and noticing. Snelling reviewed the fundamental changes recommended by the Planning Commission, which included: Changes to the protected tree list; a prescriptive tree replacement table; in-lieu fees; tree removal permit authority given to the Community Development Director except for heritage trees or removals with development applications; a tree management plan and noticing requirements; retroactive tree removals and associated fees; and designation of heritage trees. Snelling also discussed the penalties that could be imposed, and summarized earlier public comments. Kathy Stakey, representing the Chamber of Commerce Legislative Action Committee, believed that rear yard tree removals were an intrusion of property rights. Ms. Stakey also did not agree with adding the Bay Laurel and the Western Sycamore trees to the protected tree list. In section 14.18.040 of the proposed ordinance it stated the Planning Commission may designate heritage trees and Ms. Stakey noted that she thought the Planning Commission was a recommending body to the Council. Regarding Section 14.18.170 Ms. Stakey suggested that it should refer to the Board of Directors of a homeowners association rather than the association, as votes of the entire association could be time-consuming and costly. In conclusion Ms. Stakey believed in-lieu fees were a disservice to the community. Sherry Fang questioned how the Council and staff would keep track of the removed trees. She was not in favor of the tree management plan or in adding to the protected tree list. James Welsh, Commercial Tree Care, said that residents often did not want to get the permits required for tree removal because of the costs, so they arranged to do the work without permits. Mr. Welsh recommended making the permit fees more reasonable and educating the public. He stressed the damage that can be done when trees are improperly removed, trimmed or topped, and believed fines should be imposed for this action. Jennifer Griffin urged the Council to protect the trees in Cupertino since they were important for maintaining the green canopy in the city. She supported adding the Bay Laurel and Western Sycamore to the protected tree list; supported protecting oak trees and supported protecting trees in front and back yards. Ms. Griffin also encouraged Council to require stout fencing around construction sites to protect trees. Adam Montgomery, representing Silicon Valley Association of Realtors, commented on the in-lieu fees and the requirement to replace dead trees. He also recommended that owners be notified before a tree on their property was designated a heritage tree. May 1, 2007 Cupertino City Council Page 6 Council concurred to continue this item for one month and to direct staff to make changes to the draft ordinance and return for first reading. The changes discussed at the meeting were as follows: . list each species specifically . change from city arborist to certified arborist . require whole city informational postcard or letter of the updated ordinance once the ordinance becomes effective . notice to be sent to 500 feet radius or two houses in every direction, whichever is farther . location of replacement trees determined by staff working in conjunction with property owner; that decision can be appealed to City Council . in-lieu fees must be used for tree-related purpose; money must be spent within five years. 12. Consider a zoning change, Application Nos. 2-2006-06 (EA-2006-20), Olivia Jang (Huang), 20916 and 20956 Homestead Road, APN Nos. 326-09-052 and -061. (Continued from April 3). Applicant requests a further continuance to June 5. (No documentation in packet). Under Postponements, Mahoney/Lowenthal moved and seconded that this item be continued to June 5. The motion carried unanimously. UNFINISHED BUSINESS - None NEW BUSINESS 13. Conduct the first reading of Ordinance No. 07-2002: "An Ordinance of the Cupertino City Council amending Section 11.24.170 of the Cupertino Municipal Code Relating to Parking Limitations on Certain Streets, Torre Avenue Between a Point 725 Feet North of Pacifica Drive and a Point 680 Feet North of Pacifica Drive, and Between a Point 680 Feet North of Pacifica Drive and a Point 400 Feet North of Pacifica Drive to Provide for Two 20-minute Spaces and Twelve 2-Hour Spaces Between 8:00 a.m. and 5:00 p.m. Monday Through Friday." Ron Miller, Chair of Cupertino Library Commission, spoke in favor of this ordinance. The City Clerk read the title of the ordinance. Lowenthal/Sandoval moved and seconded to read the ordinance by title only, and that the City Clerk's reading would constitute the first reading thereof. Ayes: Kwok, Lowenthal, Mahoney, Sandoval, and Wang. Noes: None. 14. Adopt a resolution authorizing the City Manager to negotiate and execute a third amendment to the City's existing agreement with the Santa Clara Vallev Water District for the reconstruction of the bridge on Bollinger Road over Calabazas Creek in an amount not to exceed $156,000, Resolution No. 07-074. (Continued from March 20). June 5, 2007 Cupertino City Council Page 5 RECESS 9:05 p.m. - 9:15 p.m. 11. Consider adopting a resolution approving housing mitigation fees, Resolution No. 07- 099. (Continued from May 1). Under "Postponements," Lowenthal/Sandoval moved and seconded to continue this item to June 19, as requested by staff. The motion carried unanimously. Mayor Wang re-ordered the agenda to discuss item No. 14 next. NEW BUSINESS 14. Consider objections to the proposed removal of brush, and adopt a resolution ordering the abatement of a public nuisance (city-wide brush abatement) pursuant to provisions of Ordinance No. 724 and Resolution No. 07-073, Resolution No. 07-100. City Clerk Kimberly Smith said that the packet included a letter from James and Stamatina Stallcop which stated that they had cleared their property of brush, but if additional changes were needed, they would be out of the state for a couple of months. Kwok/Mahoney moved and seconded to adopt Resolution No. 07-100, ordering the abatement of a public nuisance (brush). The motion carried unanimously. PUBLIC HEARINGS (continued) 12. Consider a Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees), Application No. MCA-2006-02, City of Cupertino, Citywide. (Continued from May 1). First reading of Ordinance No. 07-2003: "An Ordinance of the City of Cupertino Amending Chapter 14.18 of the Municipal Code related to Protected Trees." Community Development Director Steve Piasecki listed the proposed amendments to the protected tree ordinance: list each species of trees in the protected tree list; change references from 'city-approved' arborist to 'certified' arborist; send an informational postcard or letter of the updated ordinance soon after the ordinance becomes effective to all posted addresses in the city; amend the noticing section to require notices to be sent within a 500-foot radius or two houses in each direction from the exterior boundary of the subject property of the tree removal, whichever allows for a greater noticing of surrounding property owners; modify language to allow staff to work in conjunction with an applicant/property owner to determine the location of replacement trees; and in-lieu fees must be used for tree-related purposes and shall be spent/used within five years to install trees on public property. Jennifer Griffin thanked Council for their support of this tree ordinance and their recognition of the value of the city's trees. She urged that steps be taken to preserve native oak trees, especially the west coast native oaks. She did not want to see any oaks excluded from the list. June 5, 2007 Cupertino City Council Page 6 The City Clerk read the title of the ordinance. Kwok/Mahoney moved and seconded to read the ordinance by title only, and that the City Clerk's reading would constitute the first reading thereof. Ayes: Kwok, Lowenthal, Mahoney, Sandoval, and Wang. Noes: None. 13. Consider Application Nos. Z-2006-06 (EA-2006-20), Olivia Jang (Huang), 20916 and 20956 Homestead Road, APN Nos. 326-09-052 and -061. (Continued from May 1): a) Negative Declaration b) Rezoning of a 2.2-gross acre site from Planned Development (Recreation, Entertainment, Limited Commercial) to CG (General Commercial) First reading of Ordinance No. 07-1994: "An Ordinance of the Cupertino City Council Amending Section 1 of Ordinance No. 2 by Rezoning Approximately 2.2 Gross Acres From P (REC, Enter, Ltd Com) To CG Located at 20916 and 20956 Homestead Road Application Z-2006-06. City Clerk Kimberly Smith distributed a letter dated June 2 from the Armanini Family Fund in which they stated that they had received several bids for the repair and re-striping of their parking lot as well as for the painting ofthe exterior oftheir building. Community Development Director Steve Piasecki noted that Council had wanted to see improvements made to this property and better maintenance of the property before they considered the rezoning issue. Staff s recommendation at this time was for Council to continue this public hearing until all the improvements were completed or to require the applicant to provide a cash deposit prior to the second reading of this ordinance to ensure timely completion of the improvements. Eric Huang, one ofthe property owners, referred to his May 30th letter which outlined the improvements they planned to make, including lighting, painting, repaving, landscaping, improved maintenance and removal of graffiti. Carol Matteson, one of the property owners, stated that they were committed to the repainting and repaving but thought the landscaping on Homestead was sufficient. It was agreed that Ms. Matteson would work with staff concerning an improvement to the landscaping on Homestead. City Attorney Chuck Kilian suggested that they do the first reading tonight, and continue the second reading to September 4 to allow the applicant time to complete the work. At that time the matter could be continued again if necessary. Lowenthal/Sandoval moved and seconded to adopt a Negative Declaration and approve the application. The motion carried unanimously. June 19, 2007 Cupertino City Council DRAFT Page 7 16. Authorize the City Manager to enter into an agreement with the San Jose Conservation Corp for community improvement services on an as-needed basis for the Stevens creek Corridor Proiect, up to a limit of $500,000 of City money. Parks and Recreation Director Therese Smith showed a video roll-in and reviewed the staff report via a PowerPoint presentation. She said that McClellan Ranch would be the pilot project and staff would report back to Council. Lowenthal/Sandoval moved and seconded to enter in the agreement with the San Jose Conservation Corp for community improvement services on an as-needed basis for the Stevens creek Corridor Project. The motion carried unanimously with Mahoney absent. 17. Extend the agreement for consultation services with ACI Holdings, Inc. K wok/Lowenthal moved and seconded to extend the agreement for consultation services with ACI Holdings, Inc. The motion carried unanimously with Mahoney absent. ORDINANCES 18. Conduct the second reading of Ordinance No. 07-2003: "An Ordinance of the City of Cupertino Amending Chapter 14.18 of the Municipal Code related to Protected Trees." LowenthallKwok moved and seconded to read the ordinance by title only and that the City Clerk's reading would constitute the second reading thereof. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. LowenthallKwok moved and seconded to enact Ordinance No. 07-2003 with direction to staff to report back on implementation of the ordinance and how often the following species come up: Canyon Live Oak, Oregon White Oak, and Tanbark Oak. A Citywide notice will also be mailed regarding update to the ordinance, and color and educational brochures describing the protected trees will be produced. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. 19. Conduct the second reading of Ordinance No. 07-2004: "An Ordinance of the Cupertino City Council Authorizing an Amendment to the Contract Between the Cupertino City Council and the Board of Administration of the California Public Employees' Retirement System." Lowenthal/Sandoval moved and seconded to read the ordinance by title only and that the City Clerk's reading would constitute the second reading thereof. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. Lowenthal/Sandoval moved and seconded to enact Ordinance No. 07-2004. Ayes: Kwok, Lowenthal, Sandoval, and Wang. Noes: None. Absent: Mahoney. Section CHAPTER 14.18: PROTECTED TREES 14.18.010 14.18.020 Purpose. 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 14.18.130 14.18.140 14.18.145 14.18.150 14.18.160 14.18.170 14.18.175 14.18.180 14.18.185 14.18.188 Heritage Tree Identification tag. Enforcing authority. Exemptions. Tree Management Plan Application and Approval Authority for Tree Removal permit. Director to inspect. Application requirements. Noticing Review and determination of application. Tree Replacement. Retroactive tree removal permit. 1 14.18.190 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; 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, ~ 2,1991; Ord. 1543, ~ 2, 1991) 14.18.020 Definitions. Unless otherwise stated, the following definitions pertain to this chapter. 2 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 pernlit, 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. 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. 1. "Protected tree" means any class of tree specified in Section 14.18.035. J. "Tree removal" means any of the 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, ~ 3, 1991; Ord. 1543, ~ 3, 1991) 14.18.025 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. 3 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 of the status of heritage trees and report the findings to the Planning Commission. (Ord. 1715, (part), 1996; Ord. 1543, ~ 4.1,1991) 14.18.035 Protected Trees. 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 permit: A. Heritage trees in all zoning districts. B. All trees of the following species (See Appendix B) that have a minimum single- trunk diameter of ten inches (31-inch circumference) or minimum multi-trunk diameter of 20 inches (63-inch circumference) measured 4-1/2 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) 4 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. 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: 1. 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 -1 zoning districts shall be maintained. Landscape planting maintenance includes irrigation, fertilization and prunmg as 5 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, ~~ 4.4, 4.5, 1991) 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, ~ 4.6, 1991; Ord. 1543, ~ 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, ~ 4.7, 1991) 14.18.130 Enforcing Authority. The Director of Community Development, or his/her authorized representative, shall be charged with the enforcement of this chapter. (Ord. 1543, ~ 6.1,1991) 14.18.140 Exemptions. The following situations do not require a tree removal permit prior to removal: 6 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 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, ~7.1, 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. 7 C. A written explanation of the 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 of the 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 pernlit. 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, ~8.1 (part), 1991; Ord. 1543, ~ 8.1 (part), 1991) 14.18.160 Director to Inspect. 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, 8 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 arborist certified by the International Society of Arboriculture. (Ord. 1573, ~8.1 (part), 1991; Ord. 1543, ~ 8.1 (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: 1. 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) of tree(s) to be removed. (Ord. 1835 (part), 1999; Ord. 1715 (part), 1996; amended during 12/93 supplement; Ord. 1630, (part), 1993; Ord. 1543, ~8.1 (part), 1991. 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 19.28.100B. 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 of such 9 hearing shall be mailed to each owner of record of real property within five hundred feet of the 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: 1. 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. D. The approval authority may require a tree replacement requirement in conjunction with a tree removal permit. (Ord. 1573, ~ 9.1,1991; Ord. 1543, ~ 9.1,1991) 10 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 of the 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 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% 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 Heritage tree One 48" box tree 11 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, ~ 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, ~ 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. B. Any decision made by the Director of Community Development or Design Review Committee may be appealed in accordance with Chapter 19.134. 12 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 of the 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, ~ ILl, 1991; Ord. 1543, ~ ILl, 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) 13 APPENDIX A STANDARDS FOR THE PROTECTION OF TREES DURING GRADING AND CONSTRUCTION OPERA TIONS 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 1. 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 architectlarborist 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 of fill 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. 14 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. 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. 11. Tree protection regulations shall be posted on protective fencing around trees to be protected. 15 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) 16 BLUE OAK (Quercus douglasii) BLACK OAK (Quercus kelloggii) INTERIOR LIVE OAK (Quercus wislizeni) 'f" \ " ~.~-/ ~~. -........, ~~. -'~ <4 .{\\ ~ ,\ ~", "'*'- . '/ .'- .. ~ ..... . .. " 17 CALIFORNIA BUCKEYE (Aesculus californica) BIG LEAF MAPLE (Acer macrophyllum) . -.. l - [ . ~\ ~. ',' ~ ."~.. .~. ;. ,;.~:.r'~ , .. ~ #. ~ .\'.......~ .. ~. ' ~ r :--, ~. .- J: ... ,.,.. _~ .~, . .;,~, :'~ ::.~. .~4 .. . .~.... ~:-.: ~, -~... ,~'* ~ r~ "14 ~." ~~ t.-.\ :j .... f~, e~'t ,~ t 'L J": .,....f~~ '. ... <l !I, -~~t. .. . -;';~ ..:, t ...b ___.. .. .\~ T ", -.}-, .\ -"" ~ ~ , ..... ....,.... .. . ,~~ -:... ~r. I. . ~.-'-- '.... .T 11;- -. - . .: .;.. j.~....- ~~ -_....:..-'-~ "'"- ~ - ~-.~. ... Q - t " :t..,t~(,~..., ~':.~I~.~~.I::'p.."." ..,. ."" ....-:,;-.". ow; , . ''f ",.~.' .....} .'" ,,~j} . ."~_. ,.I ~.." ,.' . " . '.'f .~... :&.'....... d./ ". . -:. ,.,' ~j;,yqfi-" '~. . ..,.~ ._~,...'_ .r":).~. ..~(~~::. ; -~ :.>~' .,: -r",.;;,. .,: - .. '., .;~Ji:, . . ~l)~: ......" -...~' .. > ]8 DEODAR CEDAR (Cedrus deodara) BLUE ATLAS CEDAR (Cedrus atlantica 'Glauca') ..~!:~. . ~'" ~. ~t!J\ ""i:. ~~. ........ -:P~~ ;~-' c ... >It.;:..~- ~~" , ~~~ ~~{f&~ ",:"~1jf!':'. ~. .~~ .. ~EnE"'M 19 WESTERN SYCAMORE (Platanus racemosa) BAY LAUREL OR CALIFORNIA BAY (U mbellularia californica) 20