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Exhibit CC 04-03-12 #10 Public Tree Ordinance q(37( /O PUBLIC WORKS DEPARTMENT CITY HALL I 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 TELEPHONE: (408)777-3354 www.cupertino.org CUPERTINO CITY COUNCIL STAFF REPORT Meeting: April 3, 2012 ADDENDUM Subject Public Tree Ordinance Amendments. Discussion Several changes have been made to the staff report and attachments since they were distributed and posted online. These changes are summarized as follows: • Section 14.12.020—Definitions: Modified definitions of"Developer" and"Professional." • Section 14.12.140—Revised language to clarify that if a violation occurs,the City may issue a stop work order or temporary moratorium, regardless of the status of permitting that may be in progress on the property; or even if no development application is on file. The revised definitions of"Developer" and"Professional" in Section 14.12.020 include the term "in the business of." For context, this term means a person who derives a substantial portion of their income from the referenced activity. Additionally, in Attachment E, Public Tree Damage or Removal Fee Schedule, a sentence applying a separate minimum fee to trees of 14 inches in diameter and less has been removed. Prepared by: Roger Lee Reviewed by: Timm Borden Approved for Submission by: David W. Knapp, City Manager Amended Attachments: Draft Ordinance (Red-lined and clean copy versions of the first reading) Public Tree Damage or Removal Tree Fee Schedule with Species Rating List . Cc Y I7(r2- 10 ORDINANCE NO. 12-2092 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO RETITLING AND AMENDING CHAPTER 14.12 PERTAINING TO PUBLIC TREES The City Council of the City of Cupertino does hereby ordain that Chapter 14.12 be amended as follows: 14.12.010 Purpose. It is in the best interests of the City and of the citizens and public thereof that a comprehensive plan for the purchase, planting and maintenance of public trees within the City should be developed and established; and that this chapter is adopted for the purpose of developing and providing for such a plan and program, and for establishing rules and regulations relating to the planting, care and maintenance of public trees; for the purpose of providing for the continued maintenance of the public trees and to provide for the funds to implement this purpose by establishing a requirement for the payment of reimbursement costs to City to plant street trees as a condition to the issuance of a building permit., when applicable, or as a result of damage to or removal of existing trees. In establishing this plan and program, the health, safety, welfare and quality of life for residents is promoted. It is also the intent of this chapter to encourage the preservation of trees. 14.12.020 Definitions. A. "1st Time Offender" means any resident o.-property owner who has not previously been cited for a violation of Chapter 14.12 . Does not include an Intentional Actor and/or Professional as defined herein. B. "Repeat Offender" means any person who has previously been cited for a violation of Chapter 14.12. A-C."City" means the City of Cupertino. lD."City Forestry Work Plan" means a plan written and annually updated by the Tree/Right of Way Supervisor. This plan includes the adoption of arboricultural standards for public trees and other public area tree care operations, establishment of near and long-term tree management and the promotion of tree care education and outreach programs. E. "Damaged or Removed Public Tree Fee Schedule" means to determine fee for damage to tree branches and roots and to determine fee for removed trees. C.F. Developer means any person in the business of improving real property in order to build structures for rent and/or sale. the legal or beneficial owner of any real property being improved in order to sell sub divided parcels of land or to build structures for rent and/or sale. G. "Excessive Pruning" means removal of more than 25% of functioning leaf and stem area of a public tree in any 12 month period, or removal of foliage so as to cause the unbalancing of a public tree. H. "Hazardous" means an imminent hazard to threat to the safety of persons or property. 1 I. "Intentional Actor" means a person who acts deliberately with an intent to violate this chapter. Intent to violate this chapter will be presumed when the person is 1) on notice of their duties under this chapter pursuant to prior written notice by the City; 2) where the person has previously been cited for a violation of Chapter; 14.12-or 3) where they are a professional. &J. "Master Street Tree List" means a listing of street tree species adopted by resolution that may be planted by the Tree Department. lK. "New Street Tree Cost Schedule and Damage Fcc Schedule" means an all inclusive cost schedule imposed per the City fee schedule adopted annually by resolution of direct and indirect labor, materials and equipment to plant street trees as may be required. G-L. "Owner" means the legal owner of real property fronting on any street of the City, and any lessee of such owner. 1=1,M. "Park Trees" means trees, shrubs,bushes and all other woody vegetation in public parks and public facilities owned by the City, or to which the public has access as a park. I-N. "Person' means an individual, a firm, an association, a corporation, the lessees, trustees, receivers, agents, servants, employees or contractors. O. "Private Trees" means trees on land lying outside the public right of way of the City. P. "Professional" means any person in the business of trimming trees who causes damage or removal to a tree covered by Chapter 14.12. . --•-1 . of another person who causes damage or removal to a tree covered by Cchapter 14.12. This term also includes developer. &O."Public Streets" or"Streets" means all roads, streets, avenues,boulevards, alleys, parkways and public rights-of-way, or any portion thereof, of the City. R. "Public Trees" means park trees and street trees collectively. LS. "Public Tree Damage or Removal Fee Schedule" means the fees imposed per the City fee schedule adopted annually by resolution for public tree removal and/or damage to public tree branches and roots. M-.T."Remove" means any of the following: (1) Complete removal, such as cutting to the ground or extraction, of a public tree; (2) Taking any action foreseeable leading to the death o f a tree or permanent damage to its health; including but not limited to excessive pruning, cutting, girdling, poisoning, overwatering, excavating, altering the grade, or paving within the drip line area of a public tree. N-U."Street Trees" means trees located on land within the public right of way on all streets, avenues, or ways within the City. 14.12.030 Responsibility. The Tree/Right of Way Supervisor or any other person designated by the City Manager, is the person responsible for the consideration, investigation, the making of findings, reporting and recommendation upon any special matter of question coming within the scope of this chapter. Additional responsibilities shall include the development/annual update and administration of a written plan for the care, preservation, pruning, planting, replanting, removal or disposition of 2 public trees. Such plan will be prepared and shall constitute the official comprehensive City forestry work plan. 14.12.040 Enforcement. The City Manager, or his/her designee, shall be charged with the enforcement of this chapter. 14.12.050 Master Street Tree List. The Tree/Right of Way Supervisor, or his/her designee, is charged with the duty of promptly determining the types and species of trees suitable and desirable for planting and the public areas in which the conditions under which such trees shall be planted in. Such determination shall be made by consulting with those familiar with the subject of such plantings, such as landscape architects, arborists, nurserymen and park executives. When such determination has been made the list shall be reported to the City Council as a proposed resolution. When approved by the City Council the resolution shall be known as the Master Street Tree List, shall be placed on file in the office of the City Clerk, and shall thereafter be the official determination for the planting of trees. 14.12.060 Planting Specifications. The Tree/Right of Way Supervisor shall have jurisdiction and control of the planting, setting out, location and placement of all public trees of the City, and shall see that a specie is uniformly planted, as is practical, in a given block and shall Likewise have supervision, direction and control of the care, trimming, removal, relocation and replacement thereof. Planting shall conform to International Society of Arboricultural Standards for Tree Operations. 14.12.070 Public Tree Management. The City and its residents share in the care and management of street trees located adjacent to private property. A. A. The City is solely responsible for the planting, management and care of public trees. Trees may be required to be planted pursuant to 14.12.120, B. Property owners are responsible for watering street trees in the right-of-way in front of their homes. C. Property owners are responsible for notifying the City of hazardous or damaged street trees in the right-of-way in front of their homes. 3 D. Property owners are responsible for the trimming and maintenance of private trees that may overhang beyond the property lines of the City,subject to the provisions of Section 14.12.110 and Chapter 14.08: Obstruction of Streets, Section 14.08.020. 14.12.080 Prohibited Acts It is unlawful and it is prohibited for any person other than the Tree/Right of Way Supervisor or his/her designee, for any person to engage in, cause or allow any of the following acts: A A. Plant, trim or cause to be planted, trimmed or removed any public tree.- B. Cause or permit any activities that may be deemed detrimental to the health of any public tree as determined by the Tree/Right of Way Supervisor. C. Remove, cut, trim, prune, spray, brace, plant, or move, any public tree within the City, or cause the same to be done. D. Intentionally poison, kill, significantly damage the functioning root system of, or remove any public tree within the City, or cause the same to be done. E. Break, injure, deface, mutilate, or destroy any tree or set fire or permit any fire to burn where such fire or the heat thereof will injure any portion of any public tree in the City, nor shall any person place, apply, attach, or keep attached to any public tree or to the guard or stake intended for the protection thereof any wire, rope (other than one used to support a young or broken tree), sign, paint, or any other substance, structure, thing or device of any kind or nature whatsoever. F. Cause or permit any vegetation to grow on any street tree located adjacent to private property that may have adverse effects on the health of the tree as determined by the Tree/Right of Way Supervisor, or his/her designee. In addition to any other penalty or enforcement provided by law, any person who violates the provisions of this chapter shall be liable for restitution and or mitigation to the City for any damage to a street tree or a park tree. The Tree/Right of Way Supervisor or his/her designee may exclude pPublic trees planted and/or removed as approved by a development or building permit from these prohibited acts. 14.12.090 Public Utilities—Tree Trimming Permit. Any person doing business as a public utility subject to the jurisdiction of the Public Utilities Commission of the state of California and any duly constituted public agency authorized to provide and providing utility service, shall be given a permit from the City Manager, or his/her designee, permitting such public utility to trim, brace, remove or perform such other acts with respect to public trees of the City as may be necessary to comply with the safety regulations of 4 said Commission and as may be necessary to maintain the safe operation of its business. Permittee shall be required to have persons who are qualified to perform the work of tree trimming and maintenance. Any proposed public tree work that meets the definition of"remove" set forth in this chapter shall be first communicated to the Tree/Right of Way Supervisor or his/her designee a minimum of 10 working days prior to the start of any proposed work. The City has the authority to approve or deny removal requests. All work performed must-be done to International Society of Arboricultural Standards. 14.12.100 Replacement Tree—Deposit. The Planning Department may A as a condition of granting a development or building permit require the permittee may be required to reimburse the City for expenses to plant street tree(s) within the limits of City property adjacent to private property as a condition of granting a development or building permit. The permittee shall deposit with the Department of Community DevelopmentPlanning Department the amount specified in the New Street Tree Cost Damage-Fee Schedule resolution. b 14.12.110 Nuisance—Liability. There are two types of nuisances that may occur within the public right of way. The first is when any private tree or shrub adjacent to or overhanging any public right of way is in such a condition as to constitute a hazard or impediment to the progress or vision of anyone traveling on such public right of way. The second is when any tree (not a street tree) or shrub planted adjacent to private property in areas reserved for public trees in the City either causes a nuisance as defined above or is detrimental to the health of street trees or adjacent City improvements. The Tree/Right of Way Supervisor, or his/her designee, may inspect either type of nuisance and cause corrective action to be taken so as to protect life, health, safety, or property of the public. any private tree or shrub adjacent to or overhanging any public right of way, or any tree or shrub planted adjacent to private property in areas reserved for public trees in the City to determine whether the same or any portion theieef is in such a condition as to constitute a hazard or impediment to the progress or vision of anyone traveling on such public right of way. Any private tree or shrub or part thereof growing upon private property but overhanging or interfering with the use of any public right of way, or any tree or shrub planted adjacent to private property in areas reserved for public trees that in the opinion of the Tree/Right of Way Supervisor or his/her designee, endangers the life, health, safety, or property of the public shall be declared a public nuisance. If the owner of such private property does not correct or remove such nuisance within 5 working days after receipt of written notice thereof from the Tree/Right of Way Supervisor, or his/her designee, the Tree/Right of Way Supervisor shall cause the nuisance to be corrected or removed and all costs shall be assessed to such owner. When the nuisance is any tree (not a street tree) or shrub planted in areas reserved for public trees, the individual 5 I responsible for the planting may, at the determination of theut the opinion of the Tree/Right of Way Supervisor, be required to reimburse the City for all actual costs incurred to remove the tree or shrub. If the individual responsible for the nuisance planting cannot be determined, the City will remove the tree or shrub. Nothing contained herein shall be deemed to impose any liability upon the City, its officers, or employees, nor to relieve the owner of any private property from the duty to keep any private tree upon his property or under his control in such a condition as to prevent it from constituting a public nuisance as hereinabove defined. 14.12.120 Condition for Development or Building Permit. Every person who constructs, remodels or alters any dwelling, commercial or industrial property, or who constructs on any unimproved land or property abutting a public street where approved street trees from the Master Street Tree List do not exist shall pay the required fee, prior to the issuance of a building permit, per the New Street Tree Cost ScheduleTree Cost and Damage Schedule, for the purchase, planting and maintenance of the trees by the City When public trees are to be removed and/or planted as a condition of an approved development or approved building permit, sections 14.12.140 & 14.12.150 of this chapter shall not apply. All public trees shall be protected against damage during construction operations. There shall be no storage of materials, tool washout, or vehicle parking near or upon public trees. 14.12.130 _New Street Tree Costs and Public Tree Damage or Removal Fee Schedules. A. New Street Tree Costs Schedule The fees imposed by the City to purchase and plant street trees shall be as specified in the New Street Tree Costs Schedule adopted by Council Resolution. All planting costs associated with a building permit shall be collected by the Chief Building Inspector, or his/her designee, for deposit into the City's general fund prior to the issuance of a building permit. B. Public Tree Damage or Removal Fee Schedule The fees imposed for public tree removal and/or damage to public tree branches and roots shall be as specified in the Public Tree Damage or Removal Fee Schedule adopted by Council Resolution. Damage and removal fees collected shall be deposited into the City's tree fund. 6 14.12.140 Remedies. In addition to all other remedies set forth in this chapter or otherwise provided by law, the following remedies shall be available to the City for violation of this chapter: A. Stop Work- Temporary Moratorium If a violation occurs, the City may issue a stop work order or temporary moratorium suspending and prohibiting all further activity on the property pursuant to the grading, demolition, and/or building permit(s) until the Public Tree Damage or Removal Fee has been deter mined by the City and paid by the permittee. If a violation occurs during development, in the absence of a development, or while upon which the street tree is located is pen:•- •, -- • --. • ' .- . .. . . -• .. - -- •:•-L, . - - , • : : •building permit(s) until the Public Tree Damage or Removal Fee has been determi--: : . -- • -- - ' - . If a violation occurs during development, the City may issue a stop work order suspending and prohibiting all further activity on the property pursuant to the grading, demolition, and/or building permit(s) until a mitigation plan has been filed with and approved by the Planning Director, agreed to in writing by the property owner(s), and either implemented or guaranteed by the posting of adequate security. If a violation occurs in the absence of development, or while an application for a building permit or discretionary development approval for the lot upon which the street -- • - - :•- ., -- ' • - - : !• :ctor may issue a temporary moratorium on development of the subject property, not to exceed eighteen months from the date the violation occurred. Mitigation measures as determined by the Director of Community Development shall be imposed as a condition of any subsequent permits for development on the subject property. B. Injunctive Relief A civil action may be commenced to abate, enjoin, or otherwise compel the cessation of such violation. C. Costs In any civil action brought pursuant to i:his chapter in which the City prevails, the court shall award to the City all costs of investigation and preparation for trial, the costs of trial, reasonable expenses including overhead and administrative costs incurred in prosecuting the action, and reasonable attorneys' fees. 7 14.12.150 Penalty. The following penalties for violation of this eChapter 14.12 may be pursued either separately or in addition to each other. A. Misdemeanorinfraction Any person who violates any provision of this chapter shall be guilty of an infraction. B. Administrative Penalites The City may pursue the remedies for an administrative penalty set forth in Chapter 1.10. Any person who violates any provision of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Chapter 1.12. C Civil Penalties The 1st time offender shall be subject to the 1st time offender fee as established in the Public Tree Damage or Removal Fee Schedule. Any repeat offender, professional or intentional actor will be subject to the higher penalties as defined below. As part of a civil action brought by the City, a court may assess against any person who commits, allows, or maintains a violation of any provision of this chapter a civil penalty in an amount not to exceed$75,000 per violation. Where the violation has resulted in damaged branches or roots of a public tree, the civil penalty shall be subject to a per inch fee adjusted by species and condition as schedule established in the Public Tree Damage or Removal Fee Schedule adopted by Council resolution. Tree Cost and Damage Fee Schedule. Measurement of the damage shall be the width of the wound measured across the grain at the widest point. When If the Tree/ROW Supervisor determines that requires corrective pruning is required to balance a public tree with damaged branches or roots, the City shall be reimbursed for actual costs incurred to do such work. Damage fees shall be paid to the City and deposited to the tree fund as required. Where the violation has resulted in removal of a public tree, the civil penalty shall be subject to a per inch fee adjusted by species and condition as established in the Public Tree Damage or Removal Fee ScheduleTree Cost and Damage Fee Schedule. Measurement of the removal shall be the diameter width at 4.5 feet above the ground. If the tree is multi-trunk, the diameter of the largest trunk is to be multiplied by 1.5 to 8 determine removal fee. If there is tree damage 4.5 feet above the ground, trunk diameter is to be measured 1 foot above ground level and 1 inch is to be subtracted from the diameter to determine removal fee. If the tree is removed to the ground, tree inventory data or other available information will be used to determine the trunk diameter. The penalty for removal of a public tree shall not exceed the trunk formula method of appraised value as determined by the most recent edition of the `Guide for Plant Appraisal', published by the Council of Tree and Landscape Appraisers. 14.12.160 Financial Hardship and Lien Procedure —A. Any owner who claims financial hardship from the imposition of a penalty under this—chapter, and who is financially unable to make the penalty payment may, in lieu of making the payment, file a request for imposition of a lien upon the real property where-the tree or trees were located. This process shall include a hardship waiver which shall—include a sworn declaration as described in subsection (C)below. B. The request shall be filed on a hardship waiver application form, available from the City Clerk's office, submitted within 21 days of the determination of penalty. C. The City may waive the requirement of an immediate payment of penalty, issue the hardship waiver and record a lien only if the cited party submits to the City a sworn declaration, together with any supporting documents or materials, demonstrating to the satisfaction of the City Manager or his/her designee the person's actual financial inability to pay the penalty immediately. In determining the cited party's financial ability or inability to pay the penalty immediately, the City Manager or his/her designee shall consider the amount of the penalty imposed, the income of the cited party, the expenses of the cited party, and any other factors that are reasonably related to the cited party's ability to pay the penalty amount. The cited party shall execute a notarized document establishing the lien on their real property at the time of application for the hardship waiver lien. D. The requirement of immediately paying the full amount of the penalty shall be stayed until the City makes a determination on whether to record the lien and issue a hardship waiver lien. The City must make its determination within a reasonable period of time, taking into account the complexity of the data pertinent to the application. E. If the City makes a determination to deny the hardship waiver lien application, a written determination listing the reasons for the denial shall be issued. The written determination to deny the hardship waiver shall be final. F. The written determination of the City's denial of the hardship waiver lien shall be served by mail upon the person who applied for the waiver. G. The lien shall remain in effect until all of the amounts due are paid in full. 9 INTRODUCED at a special meeting of the Cupertino City Council the 6th day of March, 2012 and ENACTED at a regular meeting of the Cupertino City Council this 3rd day of , April, 2012 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt, Acting City Clerk Mark Santoro, Mayor 10 CG 14 7 (( 2_ .'(d ORDINANCE NO. 12-2092 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO RETITLING AND AMENDING CHAPTER 14.12 PERTAINING TO PUBLIC TREES The City Council of the City of Cupertino does hereby ordain that Chapter 14.12 be amended as follows: 14.12.010 Purpose. It is in the best interests of the City and of the citizens and public thereof that a comprehensive plan for the purchase, planting and maintenance of public trees within the City should be developed and established; and that this chapter is adopted for the purpose of developing and providing for such a plan and program, and for establishing rules and regulations relating to the planting, care and maintenance of public trees; for the purpose of providing for the continued maintenance of the public trees and to provide for the funds to implement this purpose by establishing a requirement for the payment of reimbursement costs to City to plant street trees as a condition to the issuance of a building permit, when applicable, or as a result of damage to or removal of existing trees. In establishing this plan and program, the health, safety, welfare and quality of life for residents is promoted. It is also the intent of this chapter to encourage the preservation of trees. 14.12.020 Definitions. A. "1st Time Offender" means any resident or property owner who has not previously been cited for a violation of Chapter 14.12. Does not include an Intentional Actor and/or Professional as defined herein. B. "Repeat Offender" means any person who has previously been cited for a violation of Chapter 14.12. C. "City"means the City of Cupertino. D. "City Forestry Work Plan" means a plan written and annually updated by the Tree/Right of Way Supervisor. This plan includes the adoption of arboricultural standards for public trees and other public area tree care operations, establishment of near and long-term tree management and the promotion of tree care education and outreach programs. E. "Damaged or Removed Public Tree Fee Schedule"means to determine fee for damage to tree branches and roots and to determine fee for removed trees. F. Developer means any person in the business of improving real property in order to build structures for rent and/or sale. G. "Excessive Pruning" means removal of more than 25% of functioning leaf and stem area of a public tree in any 12 month period, or removal of foliage so as to cause the unbalancing of a public tree. H. "Hazardous"means an imminent hazard to threat to the safety of persons or property. I. "Intentional Actor" means a person who acts deliberately with an intent to violate this chapter. Intent to violate this chapter will be presumed when the person is 1) on notice of 1 their duties under this chapter pursuant to prior written notice by the City; 2) where the person has previously been cited for a violation of Chapter; 14.12 or 3) where they are a professional. J. "Master Street Tree List" means a listing of street tree species adopted by resolution that may be planted by the Tree Department. K. "New Street Tree Cost Schedule" means an all inclusive cost schedule imposed per the City fee schedule adopted annually by resolution of direct and indirect labor, materials and equipment to plant street trees as may be required. L. "Owner" means the legal owner of real property fronting on any street of the City, and any lessee of such owner. M. "Park Trees" means trees, shrubs, bushes and all other woody vegetation in public parks and public facilities owned by the City, or to which the public has access as a park. N. "Person" means an individual, a firm, an association, a corporation, the lessees, trustees, receivers, agents, servants, employees or contractors. O. "Private Trees"means trees on land lying outside the public right of way of the City. P. "Professional" means any person in the business of trimming trees who causes damage or removal to a tree covered by Chapter 14.12. This term also includes developer. Q. "Public Streets" or "Streets" means all roads, streets, avenues, boulevards, alleys, parkways and public rights-of-way, or any portion thereof, of the City. R. "Public Trees"means park trees and street trees collectively. S. "Public Tree Damage or Removal Fee Schedule" means the fees imposed per the City fee schedule adopted annually by resolution for public tree removal and/or damage to public tree branches and roots. T. "Remove" means any of the following: (1) Complete removal, such as cutting to the ground or extraction, of a public tree; (2) Taking any action foreseeable leading to the death of a tree or permanent damage to its health; including but not limited to excessive pruning, cutting, girdling, poisoning, overwatering, excavating, altering the grade, or paving within the drip line area of a public tree. U. "Street Trees" means trees located on land within the public right of way on all streets, avenues, or ways within the City. 14.12.030 Responsibility. The Tree/Right of Way Supervisor or any other person designated by the City Manager, is the person responsible for the consideration, investigation, the making of findings, reporting and recommendation upon any special matter of question coming within the scope of this chapter. Additional responsibilities shall include the development/ annual update and administration of a written plan for the care, preservation, pruning, planting, replanting, removal or disposition of public trees. Such plan will be prepared and shall constitute the official comprehensive City forestry work plan. 2 14.12.040 Enforcement. The City Manager, or his/her designee, shall be charged with the enforcement of this chapter. 14.12.050 Master Street Tree List. The Tree/Right of Way Supervisor, or his/her designee, is charged with the duty of promptly determining the types and species of trees suitable and desirable for planting and the public areas in which the conditions under which such trees shall be planted in. Such determination shall be made by consulting with those familiar with the subject of such plantings, such as landscape architects, arborists, nurserymen and park executives. When such determination has been made the list shall be reported to the City Council as a proposed resolution. When approved by the City Council the resolution shall be known as the Master Street Tree List, shall be placed on file in the office of the City Clerk, and shall thereafter be the official determination for the planting of trees. 14.12.060 Planting Specifications. The Tree/Right of Way Supervisor shall have jurisdiction and control of the planting, setting out, location and placement of all public trees of the City, and shall see that a specie is uniformly planted, as is practical, in a given block and shall likewise have supervision, direction and control of the care, trimming, removal, relocation and replacement thereof. Planting shall conform to International Society of Arboricultural Standards for Tree Operations. 14.12.070 Public Tree Management. The City and its residents share in the care and management of street trees located adjacent to private property. A. The City is solely responsible for the planting, management and care of public trees. Trees may be required to be planted pursuant to 14.12.120. B. Property owners are responsible for watering street trees in the right-of-way in front of their homes. C. Property owners are responsible for notifying the City of hazardous or damaged street trees in the right-of-way in front of their homes. • D. Property owners are responsible for the trimming and maintenance of private trees that may overhang beyond the property lines of the City, subject to the provisions of Section 14.12.110 and Chapter 14.08: Obstruction of Streets, Section 14.08.020. 3 14.12.080 Prohibited Acts It is unlawful and it is prohibited for any person other than the Tree/Right of Way Supervisor or his/her designee, for any person to engage in, cause or allow any of the following acts: A. Plant,trim or cause to be planted, trimmed or removed any public tree. B. Cause or permit any activities that may be deemed detrimental to the health of any public tree as determined by the Tree/Right of Way Supervisor. C. Remove, cut, trim, prune, spray, brace, plant, or move, any public tree within the City, or cause the same to be done. D. Intentionally poison, kill, significantly damage the functioning root system of, or remove any public tree within the City, or cause the same to be done. E. Break, injure, deface, mutilate, or destroy any tree or set fire or permit any fire to burn where such fire or the heat thereof will injure any portion of any public tree in the City, nor shall any person place, apply, attach, or keep attached to any public tree or to the guard or stake intended for the protection thereof any wire, rope (other than one used to support a young or broken tree), sign, paint, or any other substance, structure, thing or device of any kind or nature whatsoever. F. Cause or permit any vegetation to grow on any street tree located adjacent to private property that may have adverse effects on the health of the tree as determined by the Tree/Right of Way Supervisor, or his/her designee. In addition to any other penalty or enforcement provided by law, any person who violates the provisions of this chapter shall be liable for restitution and or mitigation to the City for any damage to a street tree or a park tree. The Tree/Right of Way Supervisor or his/her designee may exclude public trees planted and/or removed as approved by a development or building permit from these prohibited acts. 14.12.090 Public Utilities—Tree Trimming Permit. Any person doing business as a public utility subject to the jurisdiction of the Public Utilities Commission of the state of California and any duly constituted public agency authorized to provide and providing utility service, shall be given a permit from the City Manager, or his /her designee, permitting such public utility to trim, brace, remove or perform such other acts with respect to public trees of the City as may be necessary to comply with the safety regulations of said Commission and as may be necessary to maintain the safe operation of its business. Permittee shall be required to have persons who are qualified to perform the work of tree trimming and maintenance. Any proposed public tree work that meets the definition of"remove" set forth in this chapter shall be first communicated to the Tree/Right of Way Supervisor or 4 his/her designee a minimum of 10 working days prior to the start of any proposed work. The City has the authority to approve or deny removal requests. All work performed must he done to International Society of Arboricultural Standards. 14.12.100 Replacement Tree—Deposit. A permittee may be required to reimburse the City for expenses to plant street tree(s) within the limits of City property adjacent to private property as a condition of granting a development or building permit. The permittee shall deposit with the Department of Community Development the amount specified in the New Street Tree Cost Schedule resolution. 14.12.110 Nuisance—Liability. There are two types of nuisances that may occur within the public right of way. The first is when any private tree or shrub adjacent to or overhanging any public right of way is in such a condition as to constitute a hazard or impediment to the progress or vision of anyone traveling on such public right of way. The second is when any tree (not a street tree) or shrub planted adjacent to private property in areas reserved for public trees in the City either causes a nuisance as defined above or is detrimental to the health o P street trees or adjacent City improvements. The Tree/Right of Way Supervisor, or his/her designee, may inspect either type of nuisance and cause corrective action to be taken so as to protect life, health, safety, or property of the public. If the owner of such private property does not correct or remove such nuisance within 5 working days after receipt of written notice thereof from the Tree/Right of Way Supervisor, or his/her designee, the Tree/Right of Way Supervisor shall cause the nuisance to be corrected or removed and all costs shall be assessed to such owner. When the nuisance is any tree (not a street tree) or shrub planted in areas reserved for public trees, the individual responsible for the planting may, at the determination of the Tree/ Right of Way Supervisor, be required to reimburse the City for all actual costs incurred to remove the tree or shrub. If the individual responsible for the nuisance planting cannot be determined, the City will remove the tree or shrub. Nothing contained herein shall be deemed to impose any liability upon the City, its officers, or employees, nor to relieve the owner of any private property from the duty to keep any private tree upon his property or under his control in such a condition as to prevent it from constituting a public nuisance as hereinabove defined. 14.12.120 Condition for Development.or Building Permit. Every person who constructs, remodels or alters any dwelling, commercial or industrial property, or who constructs on any unimproved land or property abutting a public street where approved street trees from the Master Street Tree List do not exist shall pay the required fee, prior to the issuance of a building permit, per the New Street Tree Cost Schedule, for the purchase,planting and maintenance of the trees by the City. 5 When public trees are to be removed and/or planted as a condition of an approved development or approved building permit, sections 14.12.140 & 14.12.150 of this chapter shall not apply. All public trees shall be protected against damage during construction operations. There shall be no storage of materials,tool washout, or vehicle parking near or upon public trees. 14.12.130 New Street Tree Costs and Public Tree Damage or Removal Fee Schedules. A. New Street Tree Cost Schedule The fees imposed by the City to purchase and plant street trees shall be as specified in the New Street Tree Cost Schedule adopted by Council Resolution. All planting costs associated with a building permit shall be collected by the Chief Building Inspector, or his/her designee, for deposit into the City's general fund prior to the issuance of a building permit. B. Public Tree Damage or Removal Fee Schedule The fees imposed for public tree removal and/or damage to public tree branches and roots shall be as specified in the Public Tree Damage or Removal Fee Schedule adopted by Council Resolution. Damage and removal fees collected shall be deposited into the City's tree fund. 14.12.140 Remedies. In addition to all other remedies set forth in this chapter or otherwise provided by law, the following remedies shall be available to the City for violation of this chapter: A. Stop Work- Temporary Moratorium If a violation occurs, the City may issue a stop work order or temporary moratorium suspending and prohibiting all further activity on the property pursuant to the grading, demolition, and/or building permit(s) until the Public Tree Damage or Removal Fee has been determined by the City and paid by the permittee. B. Injunctive Relief A civil action may be commenced to abate, enjoin, or otherwise compel the cessation of such violation. 6 14.12.150 Penalty. The following penalties for violation of this Chapter 14.12 may be pursued either separately or in addition to each other. A. Infraction Any person who violates any provision o this chapter shall be guilty of an infraction. B. Administrative Penalties The City may pursue the remedies for an administrative penalty set forth in Chapter 1.10. C. Civil Penalties The 1st time offender shall be subject to the 1st time offender fee as established in the Public Tree Damage or Removal Fee Schedule. Any repeat offender, professional or intentional actor will be subject to the higher penalties as defined below. As part of a civil action brought by the City, a court may assess against any person who commits, allows, or maintains a violation of any provision of this chapter a civil penalty in an amount not to exceed $75,000 per violation. Where the violation has resulted in damaged branches or roots of a public tree, the civil penalty shall be subject to a per inch fee adjusted by species and condition as established in the Public Tree Damage or Removal Fee Schedule adopted by Council resolution. Measurement of the damage shall be the width of the wound measured across the grain at the widest point. If the Tree/ROW Supervisor determines that corrective pruning is required to balance a public tree with damaged branches or roots, the City shall be reimbursed for actual costs incurred to do such work. Damage fees shall be paid to the City and deposited to the tree fund as required. Where the violation has resulted in removal of a public tree, the civil penalty shall be subject to a per inch fee adjusted by species and condition as established in the Public Tree Damage or Removal Fee Schedule. Measurement of the removal shall be the diameter width at 4.5 feet above the ground. If the tree is multi-trunk, the diameter of the largest trunk is to be multiplied by 1.5 to determine removal fee. If there is tree damage 4.5 feet above the ground,trunk diameter is to be measured 1 foot above ground level and 1 inch is to be subtracted from the diameter to determine removal fee. If the tree is removed to the ground, tree inventory data or other available information will be used to determine the trunk diameter. The penalty for removal of a public tree shall not exceed the trunk formula method of appraised value as determined by the most recent edition of 7 the `Guide for Plant Appraisal', published by the Council of Tree and Landscape Appraisers. 14.12.160 Financial Hardship and Lien Procedure A. Any owner who claims financial hardship from the imposition of a penalty under this chapter, and who is financially unable to make the penalty payment may, in lieu of making the payment, file a request for imposition of a lien upon the real property where the tree or trees were located. This process shall include a hardship waiver which shall include a sworn declaration as described in subsection(C) below. B. The request shall be filed on a hardship waiver application form, available from the City Clerk's office, submitted within 21 days of the determination of penalty. C. The City may waive the requirement of an immediate payment of penalty, issue the hardship waiver and record a lien only if the cited party submits to the City a sworn declaration, together with any supporting documents or materials, demonstrating to the satisfaction of the City Manager or his/her designee the person's actual financial inability to pay the penalty immediately. In determining the cited party's financial ability or inability to pay the penalty immediately, the City Manager or his/her designee shall consider the amount of the penalty imposed, the income of the cited party, the expenses of the cited party, and any other factors that are reasonably related to the cited party's ability to pay the penalty amount. The cited party shall execute a notarized document establishing the lien on their real property at the time of application for the hardship waiver lien. D. The requirement of immediately paying the full amount of the penalty shall be stayed until the City makes a determination on whether to record the lien and issue a hardship waiver lien. The City must make its determination within a reasonable period of time, taking into account the complexity of the data pertinent to the application. E. If the City makes a determination to deny the hardship waiver lien application, a written determination listing the reasons for the denial shall be issued. The written determination to deny the hardship waiver shall be final. F. The written determination of the City's denial of the hardship waiver lien shall be served by mail upon the person who applied for the waiver. G. The lien shall remain in effect until all of the amounts due are paid in full. INTRODUCED at a special meeting of the Cupertino City Council the 6th day of March, 2012 and ENACTED at a regular meeting of the Cupertino City Council this 3rd day of April, 2012 by the following vote: 8 Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: Grace Schmidt,Acting City Clerk Mark Santoro, Mayor 9 ATTACHMENT E cc_ th! - 4/t) Public Tree Damage or Removal Fee Schedule This fee schedule is defined in Chapter 14.12 and establishes the fee to be paid to the City for damage to and/or removal of public trees. 1St time offenders, as defined in Chapter 14.12, shall be subject to a fee of 10% of the Public Tree Damage Fee or 10% of the Public Tree Removal Fee as defined below or $600, whichever is higher, per public tree damaged and/or removed, No additional costs, such as stump removal, trimming or replanting will apply. Repeat offenders, intentional actors and professionals, as defined in Chapter 14.12 shall be subject to the following fees: Public Tree Damage Fee: $100/cumulative diameter inch of branch or root plus, if any, the actual costs incurred for immediate corrective pruning plus, if any, the calculated costs for future corrective pruning, as may be required to maintain the health of the tree. Public Tree Removal Fee: The fee for each tree removed shall be based upon the unmodified value of the tree removed (based upon diameter), multiplied by the species rating, multiplied by the condition rating. FEE=UNMODIFIED TREE VALUE x SPECIES RATING x CONDITION RATING For inputs, use the following values: UNMODIFIED TREE VALUE Refer to Unmodified Tree Value Table SPECIES RATING Refer to Species Rating Table CONDITION RATING Good= 1.0 Fair= .75 Poor= .50 The fee for trees less than 4 inches in diameter shall not be reduced by species or condition rating. Trees larger than 40" shall have the fee determined by the most recent edition of the `Guide for Plant Appraisal', published by the Council of Tree and Landscape Appraisers, using the trunk formula method. No additional costs, such as stump removal,trimming or replanting will apply. April 2012 Unmodified Tree Value Table Tree size (diameter of trunk) Fee 1"to 2" $ 330 2"to 3" $ 330 3"to 4" $ 985 4"to 5" $ 985 5"to 6" $ 1,331 6"to 7" $ 1,755 7"to 8" $ 2,255 8"to 9" $ 2,832 9"to 10" $ 3,486 10"to 11" $ 4,218 11"to 12" $ 5,026 12"to 13" $ 5,911 13"to 14" $ 6,873 14"to 15" $ 7,912 15"to 16" $ 9,028 16"to 17" $ 10,221 17"to 18" $ 11,491 18"to 19" $ 12,838 19"to 20" $ 14,262 20"to 21" $ 15,763 21"to 22" $ 17,341 22"to 23" $ 18,996 23"to 24" $ 20,728 24"to 25" $ 22,536 25"to 26" $ 24,422 26"to 27" $ 26,385 27"to 28" $ 28,425 28"to 29" $ 30,541 29"to 30" $ 32,735 30"to 31" $ 35,005 31"to 32" $ 37,353 32"to 33" $ 39,777 33"to 34" $ 42,279 34"to 35" $ 44,857 35"to 36" $ 47,513 36"to 37" $ 50,245 37"to 38" $ 53,055 38"to 39" $ 55,941 39"to 40" $ 58,904 April 2012 Measurement shall be measured 4.5 feet above the ground level and rounded down to the nearest whole inch. If the tree is multi-trunk, use 1.5 times the diameter of the largest trunk to determine fee. If there is tree damage 4-5 feet above the ground, trunk diameter is to be measured 1 foot above ground level and 1 inch is to be subtracted from the diameter to determine fee. If the tree is removed to the ground,tree inventory data will be used to determine the trunk diameter. Species Rating Table Common Name Species Rating% Acacia ACACIA 60 African sumac RHUS LANCIA 70 Alder ALNUS GLUTINOSA 80 Almond tree PRUNUS ALMOND 50 Apple MAL US SP 40 Apricot tree PRUNUS APRICOT 40 Ash FRAXINUS 80 Australian willow GEIJERA PARVIFOLIA 80 Bay laurel UMBELLULAIIA CALIFORNICA** 100 Big leaf maple ACER MACROPHYLLUM** 100 Birch BETULA ALBA 60 Black oak QUARCUSKELLOGGII** 100 Blue atlas cedar CEDRUSATLANTICA** 100 Blue oak QUARCUSDOUGLASII** 100 Brazilian pepper tree SCHINUS TEREBINTHEFOLIUS 40 California buckeye AESCULUSCA'LIFORNICA** 100 California pepper tree SCHINUS MOLE 40 Camphor tree CINNAMOMUMCAMPHORA 70 Carob tree CERATONIA SJLIQUA 70 Chinese elm ULMUS PARVIFOLIA 70 Chinese hackberry CELTUS SINENSIS 65 Chinese pistacio PISTACIA CHIIVENSIS 80 Chinese tallow SAPIUMSEBIFERUM 50 Citrus CITRUS SP 40 Coast live oak QUERCUSAGRIFOLIA** 100 Coast redwood SEQUIOA SEMPRIVIRONS 95 Crape myrtel LAGERSTROMIA INDICA 80 Deodora cedar CEDRUS DEODARA** 100 Eucalyptus EUCALYPTUS SP 60 Flowering cherry PRUNUSAKEBONO 80 Flowering pear tree PYRUS CALLERYANA 75 Fruitless mulberry MORUSALBA 40 April 2012 • Holly oak QUERCUSILEX 90 Honey locust GLEDITSL4 TRIACANTHOS 70 Interior live oak QUARCUS WISLIZENI** 100 Jacaranda JACARANDA MIMMOSIFOLL4 70 Liquidamber LIQUIDAMBER STYRACIFLUA 40 Loquat ERIOBOTRYA DEFLEXA 60 Magnolia MAGNOLIA GRANDIFOLIA RUSSET 75 Magnolia(dwarf) MAGNOLIA GRANDIFOLIA ST MARY 75 Maidenhair GINKO BILOBA 80 Malaleuca(broad leaf) MELALEUCA LEUCADENDRA 60 Malaleuca(narrow leaf) MELALEUCA LINARIFOLIA 60 Mayten tree MAYTENUS 70 Olive OLEA EUROPAEA 40 Palm PALM* 40 Peach tree PRUNUS PERSICA 40 Pine PINUS SP 30 Plum PRUNUS WILD PLUM 40 Privit LIGUSTRUMJAPONICUM 30 Purple leaf plum PRUNUS CERASFERA KRAUTER VESUVIUS 70 Red hoursechesnut AESCULUSXCARNEA 90 Red maple ACER REBRUM 70 Red oak QUERCUS SUBER 90 Redbud(eastern) CERCIS CANADENSIS 75 Silk tree ALBIZIA JULIBRISSIN 50 Sycamore PLATANUS** 100 Tristania TRISTANIA LAURINA 70 Tulip tree LIRIODENDRON 60 Valley oak QUARCUSLOBATA** 100 Walnut JUGLANS 70 Zelkova ZELKOVA SERRATA 65 *All palms on Palm Ave are protected heritage trees and will be rated @ 100% **Protected tree species per 14.18 April 2012