Ordinance No. 12-2092 Public Trees 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
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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. 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.
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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.
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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
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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.
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 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. 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.
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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.
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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 of 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
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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.
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14.12.170 Appeal.
A. Any recipient of a penalty under this chapter may, within ten business days from the date
of that penalty, contest that there was a violation or that he or she is the party responsible
for committing the violation by filing an appeal with the city clerk for the matter to be
heard by the City Manager or his/her designee. Any appeal not timely filed shall be
rejected.
B. All appeals shall be in writing and shall contain the following information:
1. Name(s) of each appellant;
2. A copy of the violation notice;
3. A brief statement in ordinary and concise language of the specific items protested,
together with any material facts claimed to support the contentions of the appellant;
4. A brief statement in ordinary and concise language of the relief sought and the reasons
why the penalty should be rescinded, modified or otherwise set aside; and
5. The signatures of all parties named as appellants and their mailing addresses.
C. Any recipient of the penalty must submit to the City Clerk an advance deposit of the total
fine amount or an advance deposit hardship waiver application form as described in
Section 1.10.080. Any appeal filed without payment of the advance deposit or submittal
of the advance deposit waiver application shall be deemed incomplete.
D. The person requesting the appeal shall be notified in writing of the determination of the
City Manager.
E. If the Tree/Right of Way Supervisor submits an additional written report concerning the
appeal to the City Manager for consideration, then a copy of this report also shall be
mailed to the appellant.
F. Enforcement of any penalty shall be stayed during the pendency of an appeal which is
properly and timely filed.
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: Santoro, Mahoney, Chang, Sinks, Wong
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
Grace Schmidt, Acting City Clerk Mark Santoro, Mayor
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STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, GRACE SCHMIDT, Acting City Clerk and ex-officio Clerk of the
City Council of the City of Cupertino, California, do hereby certify the
attached to be a true and correct copy of Ordinance No. 12-2092, which
was enacted on April 3, 2012, and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 4th day of April 2012.
iVvt,t‘S_f-
GRACE SCHMIDT, Acting City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California
Ordinance Certificate