101-Draft Minutes 12-10-2013.pdfCITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
6:45 P.M. December 10, 2013 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of December 10, 2013 was called to order at 6:45 p.m. in the
Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Chair Don Sun.
SALUTE TO THE FLAG
.
ROLL CALL
Commissioners present: Chairperson: Don Sun
Vice Chairperson: Paul Brophy
Commissioner: Margaret Gong (arrived after roll call)
Commissioner: Winnie Lee
Commissioner: Alan Takahashi
Staff present: Community Development Director: Aarti Shrivastava
City Planner: Gary Chao
Assistant Planner: Simon Vuong
Asst. City Attorney: Colleen Winchester
APPROVAL OF MINUTES:
1. Minutes of the October 2, 2013, Planning Commission meeting:
MOTION: Motion by Vice Chair Brophy, second by Com. Takahashi, and carried 4-0-0 to
approve the October 2, 2013 Planning Commission minutes as presented (Com.
Gong absent when vote taken)
WRITTEN COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
CONSENT CALENDAR: None
Com. Gong arrived during Study Session.
STUDY SESSION:
2. MCA-2013-01 Municipal Code Amendment to the Protected Tree Ordinance.
(EA-2013-02) Study Session to discuss potential revisions to Municipal Code
City of Cupertino Chapter 14.18, Protected Trees to make recommendations to the
City Council. Tentative City Council date: 01-21-2014
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Simon Vuong, Associate Planner, presented the staff report:
• Said the purpose of the Study Session is to receive direction on amendments to the Municipal Code
Chapter 14.18 Protected Tree Ordinance, as requested by City Council. In March 2013 the City
Council amended the Tree Ordinance to remove references to public trees and reduce the penalty for
illegally removing a tree from a misdemeanor to infraction. A report was also prepared streamlining
the tree removal process in residential zones for smaller trees, but still requiring tree replacements;
also to review the size of specimen trees and ensure they are native, encourage retention of specimen
trees regardless of size and consider whether greater penalties would be required for illegal removal
of trees. Staff prepared a draft ordinance as shown in the staff report, Page 10; key features include
retention of specimen trees on the list; current tree removal process, which remain in place for mature
or large trees. Tree removal applications for trees not mature would not need an arborist report for
removal, only mitigation in the form of replacements or an in-lieu fee.
• Staff recommends specimen tree size of 12 inches circumference; and will retain larger protected
trees on approved landscaping plans, separate from the residential properties. The city consulting
arborist recommends the approach adopted by adjacent cities requiring large fees for penalties. A
new process may be put in place for property owners in residential zones who desire to voluntarily
plant trees allowing property owners to register the trees at time of planting and record on the home
deed. The trees are not subject to tree removal permits or mitigation requirements if removed.
• Comments regarding the proposed changes to the ordinance from a community meeting held in
October 2013 are listed on Page 12 of the staff report. Staff prepared a spectrum of five alternatives
for review shown on Page 12 and 13.
• He discussed the fee structure for illegal tree removal which is currently $3,128 per tree illegally
removed. The City’s consulting arborists suggest that a penalty producing more replacement trees be
instituted as implemented by other surrounding communities. Staff is seeking the Planning
Commission’s preference on the fee schedule; options include a flat retroactive fine or a formula
similar to that of street trees.
• Staff recommends that the Planning Commission provide additional directions on the amendments for
staff review and forward to City Council.
• Staff answered Commissioners’ questions regarding tree removal and replanting, and fees.
Chair Sun opened the public hearing.
Yvonne Hampton, Cupertino resident:
• Discussed a large oak tree in their back yard which they did not plant and have spent vast amounts of
money over the years to take care of and treat tree disease; it is a nuisance in that it blocks the sun and
sheds leaves constantly, making the yard non-usable for the family. She expressed opposition to
having to take care of a tree which they did not plant and do not want in their yard, and stated that
homeowners should have the right to remove a tree on their property. When planted in the front of
their home, the large trees eventually crack concrete and eventually the roots may uproot pipes in
their yard which is a hazard for the homeowner as well as a major expense to repair.
Roy Hampton, Cupertino resident:
• Reinforced the concerns of his wife who spoke previously, and expressed frustration that
homeowners were expected to carry the burden of expenses related to the upkeep and care of trees
planted by the city on their property. He said that the Oak tree on their property was diseased and
dangerous and two arborists deemed that they could do nothing further with the tree. When he asked
the city to remove the diseased tree he had to pay to remove the tree as well as pay the city not to
plant another tree. He questioned why the private citizens were burdened with the expenses of the
tree, when they did not plant the tree, did not want the tree and it interfered with enjoying the comfort
of their home and yard. Other residents have been plagued with problems resulting from the tree
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roots breaking up concrete, growing under their homes and destroying pipes. The city does not cover
the expenses from the hazards created by the unwanted trees. He estimated their cost of having the
tree removed and the fee paid for not replanting a tree was $3,000, as well as other costs for other
arborists.
Fenton Hill, 20915 McClellan Rd., Cupertino:
• Said that his 22,000 sq. ft. lot was covered with vegetation; at least 25 large trees that are 50 to 70 ft.
tall, 17 medium trees. There is a dead tree about 50 to 60 feet tall that needs to be removed and he
will have to pay the city $2,000 to have it removed; as well as pay the city to replace the tree which
he or his neighbors do not want as they have a backyard pool. He was opposed to paying an in-lieu
fee or having to pay the city approximately $3,000 to $4,000 to replant a tree he does not want on his
property. It is an unfair expectation for property owners.
Lynn Faust, Cupertino resident:
• Read the following text into record: “I am resident of a planned unit development Rancho Deep Cliff
in Cupertino, and also a multi-year member of our Landscape Committee which spends a lot of time
and money annually caring for and preserving our trees, a wonderful asset to our community. In
recent weeks we spent about 6 hours with a couple of tree service companies assessing the health of
our trees and getting bids for work in 2014 since our tree canopy was, and continues to be, one of the
major drawing cards for buyers looking to purchase in our development. We feel it is worth the time
and effort and expense to maintain it; it adds a significant amount of real estate value to our homes.
Guests who visit will often comment about the rather drastic change from driving up nearby sections
of Foothill Blvd. and Stevens Canyon Rd. and then driving down into our complex finding a peaceful
tree-filled oasis. I grew up in Willow Glen in the late 50s and rode a school bus to Mtn. View thru
orchard filled Cupertino; I had plenty of time to admire the scenery along the way; it also made a
lasting impression on me at the time that this small town had so much arboreal beauty. While growth
and development have certainly displaced most of our local orchards, the city has maintained its goals
and strong standards in supporting policies that create the beauty and accompanying environmental
benefits including wildlife habitat that trees can provide. Last month I read an article about Apple’s
landscape plans for their new campus and their arborist monthly stating the goal of bringing
California back to Cupertino. The article went on to describe the goals for an ecologically rich area
for employees to dine alfresco in an area Apple called the Glade. Their stated goal by 2016 is to have
an 80% landscape; currently the plot has about 4500 trees and by that time it will be more like 7,000.
I am not sure where the water is coming from but they will certainly have accomplished their goal of
creating a visual buffer from prying eyes, as well as the accompanying environmental benefit. We
are definitely now a fast moving society and often an impatient one, but the concept of heritage trees
should not give in to slapdash mentality but instead remain a thoughtful researched approach. I
believe that criteria to be considered for removal should include such items as the condition of the
tree with respect to disease, eminent danger of falling, proximity to existing or proposed structures
and interference with public utilities. Consideration should also be given to the effect that tree
removal would have on shade, privacy impact, scenic beauty and property values of the general area.
I would even suggest your strong consideration be given to public notification when a tree removal
permit is issued (sounds like you are already doing that). I understand that neighboring cities such as
Mtn. View and Los Altos Hills have similar policies. Palo Alto 17 years ago established what is now
a non-profit group called Canopy; they might also serve as a resource to our city as we rethink our
protected tree ordinance; we certainly know how high the property values are in that city and how
they view their trees as a very precious resource. I strongly believe that as a city we have been able to
keep and nurture our healthy tree population and the beauty it provides, as least in part to our city’s
strong, protected tree ordinance. I would hate to see any significant relaxation in those policies.
Thank you for your consideration.”
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Jennifer Griffin, Rancho Rinconada resident:
• Said she was frustrated at the number of times the tree ordinance had been reopened since 2000 and
said the present study was the sixth time. She expressed concern that the Bay Laurel tree was under
attack; it was put on the list four years ago by arborists, Planning Commission and City Council and it
is a native tree, the largest Bay Laurel in California is at Rancho San Antonio Park and is over 400
years old. She said it was important to keep the Bay Laurel on the list and predicted that in three
years the oak trees could be removed from the endangered list. Said that it was important to
distinguish between small lot vs. large lot. She was concerned that so much time and money has
been spent rehashing the ordinance repeatedly, and hoped that each time they go through the process,
it will get locked down tighter and protect the trees.
Dave McLeroy, Cupertino resident:
• Labeled himself as a tree hugger who enjoyed walking the hiking trails; and said he was pleased that
the tree ordinance was being worked on. Said he had many years experience with his firm managing
tens of thousands of trees for major companies and homeowners’ associations in northern California,
and the presentation did not contain any alarming information. He expressed concern about a Deodar
Cedar tree in his front yard that causes problems by dropping an alarming amount of sap on cars
parked around his property, which distresses the neighbors also. He encouraged the city to provide
some relief to the homeowners who cannot afford to pay to remove and replace the problem trees. He
said it was an outrage to charge $500 for an arborist to come and look at one tree; his main issue
today is for the city to be sensitive to the situational aspect of tree management; some people have a
small lot and they cannot afford to replant a 36 inch box tree to replace one that is removed. He
asked for consideration of some architectural changes to mitigate the sap dripping and suggested a
carport over the area or some structure that would catch the sap so it wouldn’t drop on the ground,
with the result of people tracking the sap drippings on their property and into their house. He said he
did not want to remove the tree and was seeking ways to solve the problem. He asked staff to
consider ways to mitigate the problems the residents were faced with.
Chair Sun closed the public hearing.
Staff answered Commissioners’ questions regarding the tree ordinance:
Com. Brophy:
• Asked if a specimen tree above the minimum size needed to be removed because it was dead,
diseased or pulling up the sidewalk, is the property owner responsible for providing a replacement?
Aarti Shrivastava:
• Said once the tree is above that size, the tree could be removed under those conditions, but it has to be
mitigated. The property owner has the option of paying into an in-lieu fee fund which is used toward
planting of street trees in the rest of the city. The idea is to replace the bio mass that is removed in
some form, whether it is on their site or somewhere else in the city. The in-lieu fee is typically lower
than the cost of planting a new tree.
• If a large tree is removed and the property owner has to provide mitigation and they choose two trees,
and they don’t have space to plant two, the owner might say they don’t want to plant two trees in their
yard; it is usually the choice of the owner unless there is a cleared area where it can be planted,
usually the owner gets to pick. The choice is not to not pay for an arborist because there are certain
findings that have to be made in order to remove the tree and one of the findings is that the tree is
diseased or there are other issues; that is why an arborist is needed. The findings don’t give a choice.
Gary Chao:
• Many times what people are told in the spirit of helping them save money, is that when there is a
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difficult situation or gray area, staff recommends they retain the city arborist to minimize any
additional need of having their arborist come up with something that doesn’t really address the issue;
having to later pay for the city arborist to again verify and provide clarity. Many people take on that
option because they feel there is an efficiency gain; you don’t have to have two arborists; it is always
an option available to the public.
Aarti Shrivastava:
• The findings are health, safety, property damage; after going through the findings if there is good
reason to remove the tree, they can remove it as long as it is mitigated. They actually go through all
those issues. Said staff is seeking direction; there is a spectrum of options, one recent one relative to
middle tier, says they can create where you don’t have to go through an arborist report and findings
for each tree; it also addresses the size of the site and number of trees on a site. An arborist may be
needed to go out and document, but you don’t have to go through a whole health and safety issue; you
can remove as many trees as long as it is mitigated. Below 10 inches mitigation is not needed;
anything above 10 inches has two processes; if it is between 10 and 24 they will not evaluate the
health; it can be removed as long as it is mitigated; if above 24 inches, you have to go through the
process. Said it was starting to push some of the limits; they talked to the environmental consultant
who pointed out that trees have many benefits, they have environmental issues, and if they get rid of
the process, they will have significant environmental issues on a cumulative basis throughout the city.
She said staff is trying to find a balance between the existing ordinance and an option that states for
certain group of trees there is no noticing or wait period. Said there are other options the Planning
Commission might want to give direction on.
Com. Brophy:
• The issue of environmental issues has been raised and in one of the earlier reports there was mention
that at certain levels, environmental review might be required; and it was even suggested at one level
there might be an environmental report. He said he was puzzled about what the thought was.
Overall in looking at all the trees in Cupertino on home lots, street trees, park trees and trees in the
hills, it averages out to 25 trees per household in Cupertino., which equals 20,000 dwelling units, or
500,000 trees. The number of trees for which there are tree permits for each year are in the order 100
to 150 per year.
Aarti Shrivastava:
• Said they have to count the actual number of trees; the permits are 80 to 100. They look cumulatively
beyond.
Com. Brophy:
• Referred to Page 38 of the staff report and noted that the number of protected trees over a four year
period averaged over 300 per year; and said if it is less than one tree in 1,000 he was confused how it
would constitute an environmental impact. The amount of bio mass that exists under any regime
from no tree ordinance to the most restrictive is basically going to be unchanged by the process. He
questioned the talk about environmental impact review.
Aarti Shrivastava:
• Said they rely on their environmental consultant’s expertise on air quality issues, sustainability issues,
and greenhouse gas issues.
Com. Brophy:
• Said he was certain the environmental consultant was knowledgeable but he felt the numbers didn’t
work out under any regime from the most strict to the most lenient that there is a significant
environmental issue.
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Aarti Shrivastava:
• Said they had to account for more than one year and the probability of what could happen; it
is a question of a risk management relative to how the risk is calculated; have all the options
been studied; and for that a program environmental impact review would be appropriate if
the process is made less lenient. It would also allow subsequent tree removals to actually be
done in a more streamlined way environmentally because you have accounted for all of the
impacts up front with this project as opposed to doing it tree by tree if the goal is to
streamline the process for individual homeowners.
Simon Vuong:
• Noted that the $500 is a base deposit; typically the arborist charges less, whatever is remaining is
refunded to the applicant. The typical rate could be $250 or $300 in some cases it is more; however it
is conveyed to the applicant prior and they are told $500 which is a round number; the applicants are
told it could be less.
Aarti Shrivastava:
• Said it sometimes it depends on the number of trees and the application being reviewed. They don’t
differentiate between lot size, but look at the tree type and size; findings cannot be created on
someone’s income. There is the opportunity for people to apply for hardship waiver for fees but
usually a lien is put on their property and people don’t like liens on their property. It is a choice.
Simon Vuong:
• Reviewed the option shown; Tier 2 the criteria more restrictive of the two, so (a) less than 10% of
specimen trees or (b) up to three specimen trees; if the individual had 30 specimen trees that were in
the 10 to 24 inch range, they can remove three by either criteria or if they had ten trees, they could
remove one. The permit costs for the first three removed is $175, second and subsequent trees are $85
as well as other environmental and noticing fees approximately $500 to $600 in addition to those fees
excluding replacements and arborist fees.
Aarti Shrivastava:
• The retroactive tree removal permit gets to a better sense of what the cost recovery is based on staff
time for the tree removals, but there is an incentive given to approval of permits for people to apply
for the tree removal vs. removing illegally.
• With the additional option, staff is looking at keeping the 10 but by giving a second tier that would
not require noticing or individual assessment of each tree. Presently anything over 10 inches requires
the standard permit process, noticing, arborist review of the tree condition and going through the
findings. In this case staff says they will create a new tier where the 10 to 24 inch group does not
have to go through noticing and it will not have to go through individual arborist’s assessment of each
tree; you can remove it as long as you mitigate it but once you go beyond the 10% or beyond three
trees, you get into tier 3 and anything over 24 inches will keep the current process.
• Said that if a property owner does not want to plant the replacement tree on his property, he can pay
the in-lieu fee which will go into a tree planting fund to be used to plant more street trees or trees on
public land as opposed to private property.
Chair Sun:
• Referred to Mr. Hill’s concern about the financial burden placed on homeowners, particularly those
on a fixed income, relative to tree removal and replacement, and said a solution was needed for the
special situation. How does the city handle the residents who have special situations; when they
remove the trees it is a financial burden; the situation needs some consideration on how to balance
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the consideration?
Aarti Shrivastava:
• Explained that a property owner could apply for a hardship waiver if they are not able to pay to have
the tree replaced or the in-lieu fee. The city would collect the money when the house is sold.
Removal of a 14 inch Oak tree would cost between $900 and $1,000. The special consideration would
be the hardship waiver.
Simon Vuong:
• The role of the arborist is to determine whether or not there are findings to remove the tree; if there is
a claim that the tree is unhealthy and diseased, if there wasn’t a finding to remove that tree, the city
would not be able to support it.
Aarti Shrivastava:
• Said she noted in writing speaker Foust’s recommendations; the condition whether the tree is falling,
structure, all are findings already; health, safety, property value and damage are all currently findings
and if the tree is affecting any of those that warrants its removal, then staff would approve the
removal of the tree. Relative to general property values in the area, the city typically doesn’t want to
get involved where it affects the actual property. For example sometimes people go to staff and say it
is a beautiful tree but they are having insurance problems because it is going over the house; and
when the arborist confirms it staff says they can remove it. The criteria is built into the findings.
Com. Brophy:
• Said he had served on the Commission for six years and noted it was the first time in his service that
the tree ordinance was under study. Other than reviewing tree planting plans for commercial projects,
the Planning Commission does not deal with tree issues as they are handled as administrative matters.
He indicated that there have been unsolicited complaints about how the city does business from a
planning perspective in dealing with tree removals from residential areas. There is a perception that
the process is bureaucratic and that the various fees the city charges are a form of extraction; a form
of hidden taxation. He said he was interested in trying to minimize the burden on residential areas
and still maintain some of what they want to accomplish. He agreed with staff that the voluntary
planting issue was a non-starter that seems unduly complicated and should best be forgotten.
• He addressed the concerns raised by Mr. and Mrs. Hampton and Mr. Hill, dealing with the question of
dead, dangerous or diseased trees or trees that are uprooting sidewalks because the city has legal
liability for uprooting sidewalks. Said he felt that any specimen tree in those categories should be
allowed for removal without fee and without the requirement to replace it.
Aarti Shrivastava:
• Said that a fee is not charged if the tree is dead. Staff may feel the need to call in an arborist to
ascertain if the tree is still alive.
Com. Brophy:
• To the extent that staff can make an initial judgment on any of those issues, being dead, diseased,
dangerous, or an uprooted sidewalk, staff can at first glance do that which would eliminate the need
for the arborist. He suggested that trees in that category not generate the need for a replacement tree,
there on site or as a contribution to the city.
• Relative to Mr. McLeroy’s concern about the issue of the dripping cedar trees, they are trees that they
would like to keep, and hopefully a solution can be found. If trimming the tree could not solve the
problem, in that case a replacement tree or a contribution to the city might be reasonable. That is a
different category than the previous one of trees that are a danger or liability to the city.
• Relative to the 10 inch or 12 inch issue, it is an arbitrary number and the arborist’s decision. Said he
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did not support making people pay for a replacement tree on city land; the city plants trees every year
in the normal course of maintaining parks and there is a sense of something unethical about the
process.
• In the case if diseased trees, most people want large trees; where the trees need to be removed, there
should not be a burden on the homeowner to replace it either on or offsite.
Aarti Shrivastava:
• Said they could remove the option although most people would prefer to have it; they are told they
can mitigate it on their own property but sometimes they do not want to do that. There is usually a
finding about property value and damage and they look at what it is; if it is a house or a sidewalk,
they look at that; they already have findings that evaluate those.
Com. Brophy:
• Said that he had the right to trim the branches of a neighbor’s tree if they are leaning over his property
line; tree branches can be trimmed. If the tree is leaning over, it is a different scenario. Said he did
not consider trimming trees every three years as dangerous. If the branch is hanging over his roof he
or someone else can trim them. If the tree is leaning over his roof, then it’s a source of danger. Said
he was interested in removing the requirement to replace those categories of trees when a tree has to
be removed, as Palo Alto does. Problem with a tree fund is that Parks and Rec does their planting
plans with a budget. If a tree needs to removed he did not agree there should be mitigation either on
or offsite; if the tree is being removed for the aesthetic preferences of the property owner, or if it is a
specimen tree above 10 inches.
Colleen Winchester, Asst. City Attorney:
• Clarified Com. Brophy would have the right to trim the neighbor’s tree, but he would need a permit
or permission from the owner. The other concern is if the tree is trimmed too much, it might kill the
tree, which is a whole other legal quagmire. It is generally a matter of good neighbor policy.
Aarti Shrivastava:
• There is usually a finding about property value and damage and staff will look at what it is; if it is a
house, definitely; sidewalk is also looked at. Said they already have findings that evaluate those.
Colleen Winchester:
• The question is when is environmental review triggered and they are talking about the environmental
review in this particular circumstance for the entire ordinance and the goal is with the environmental
review to try to minimize the concern that you need environmental review on an individual basis and
that is where it is triggered; a replacement tree is how you get back to zero. Those are the kinds of
questions the environmental consultant needs to examine.
Com. Brophy:
• Pointed out that in a city of a half million trees, it was bizarre to have to plant a tree in Memorial Park
because an oak tree on McClellan Rd was removed. There is no environmental impact removing one
tree in a city of 500,000 trees. If a tree is being removed for aesthetic preferences of the property
owner, he said he did not see the need for mitigation either onsite or offsite.
Com. Gong:
• Said the point made is the one tree that is removed but not mitigated and not being replaced now
could in five years be 1500 trees and there is no mitigation; so it is speaking of the cumulative effect.
Colleen Winchester:
• Said it is part of what the environmental consultant is looking at and is all part of a package in dealing
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with the proposed ordinance amendments.
Aarti Shrivastava:
• An arborist appealing another arborist’s finding is rare; there are times they can resolve it themselves
by talking. They are professionals and understand the profession; there might be some differences of
opinion, usually they confer and things get resolved.
• Said the city did not have a private resident inventory of public or private trees; Public Works is
doing a review of street trees. Without the inventory, there is no way of knowing the effect of adding
another tier; perhaps all trees are under 10 inches. Said that environmentally they understand that it
might have to be a program EIR in order to give that level of flexibility, but the mitigation is still
required. The in-lieu fee is what is determined by Public Works about what it takes to buy and plant a
tree. The cost of a tree removal permit is lower than it costs in staff time for processing.
Com. Brophy:
• Said that they did not include planned residential communities because traditionally they have a
landscape plan approved at the time the project is built. Notwithstanding that, is there any reason
why they cannot go ahead and handle tree removals on residential planned communities in the same
way as with the residential zones. There have been some comments from people who are on HOA
boards complaining about trees growing, things happen, people want to change it and they have to go
through the staff process.
Aarti Shrivastava:
• Usually they go through a permit and a planned development permit; a change to the permit requires a
modification; sometimes they might have as many as 400 trees they want to remove. Instead of
charging for each tree, there is a much lower cost in the $3,000 range; there is a charge for a tree
management plan where they can go in and get an arborist to work out a phased removal so the fees
for tree removal are lower, but it still requires an arborist. If the question is why can’t they go ahead
and remove those 400 trees without an arborist or mitigating, it would be hard to meet those findings.
• For two or three trees, it is $175 plus $80 for each tree for the permit; the arborist is required to do a
review unless the tree is dead, diseased or has obvious structural damage. It doesn’t matter if it is a
non-specimen tree; it is part of the landscape plan approved, because they don’t only require
specimen trees to be planted as part of a landscape plan; a number of residents are very involved in
many of the projects and very often notice to adjacent property owners is given; it is a public process.
Com. Gong:
• Asked if in a planned residential HOA situation, if they have their own arborist and they go through
the whole plan, do they still need to hire the city arborist or is it one or the other.
Aarti Shrivastava:
• The city arborist at that point will do a peer review which is not too costly; they will ensure that
everything is in the right place and the right analysis has been done; they may question one tree or
another, so they can chose to go either way. The city arborist doesn’t do the same level of analysis as
theirs; it is a choice either way if they go with the city arborist.
Com. Lee:
• Said she felt it was absurd not to be able to cut down trees if on one’s private property. She requested
further discussion of Alternative 4 which is protection of the heritage trees; they protect privacy trees,
planned development trees but no more specimen trees. The different tiers are confusing. She also
requested consideration of an incentive fee based program to plant trees; similar to the discussion of a
voluntary tree planting. The idea is burdensome for staff and hard to carry out. She said she
supported Com. Takahashi’s preliminary discussion about some type of rebate program or fee
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reduction if one goes above and beyond and plants a tree in their yard. Said she would be open to
discussion about creating ideas to forward to City Council for a voluntary program, or incentive to
plant trees. Trees contribute to the beauty of Cupertino and home values; they should be protected but
can be burdensome. She said she did not support having specimen trees.
Com. Takahashi:
• This is typical conflict between private property ownership and environmental protection which
shows up in many places; for us it shows up in the tree ordinance. Said he supported the possibility
of trying to strike some balance between private ownership and preservation because while Com.
Brophy’s argument just one tree for one person, you could say it doesn’t make a difference but again
if everybody has that mindset and cuts down one tree, it is a large percentage and you can’t look at it
that way. After looking at what was presented, the option presented tonight with regard to further
tiering and allowing more flexibility of the property owner, takes a extra step in giving the property
owner more flexibility and some cost mitigation with regard to Tier 2 whichrepresents a good
percentage of trees that are going to be on most smaller lots. Whether or not it is 10 or 12 inches not
certain if that makes much difference. Said with regard to the fee structure, he was having difficulty
from the standpoint of how the costs and what costs should the property owner be paying because it
clearly can be a significant cost that a private property owner is shocked by. The residents are going
to pay depending on the size of the tree $1,000 to $2,000 just to have the tree cut down and the other
fees; it seems like they can be onerous. In terms of mitigation he does not feel it is a good thing, if
removing a tree, to have some level of incentive to replace that tree whether or not it is on their
property. It would be interesting to know if that is done from the standpoint of is the city planting
more trees than people have requested to mitigate; because otherwise it is fraudulent. It is a difficult
challenging topic.
• Said he preferred the latest presented alternative which provided the most flexibility; getting more
feedback with regard to what is going to be the environmental impact, i.e., do they have to actually
redo an Environmental Impact Report or is it moderate enough where that is not the case, which was
presented in one of the other options as far as a middle ground.
Com. Gong:
• Said she too found it interesting that property owners could not plant or remove trees without a
permit, and she understood ‘remove a tree/replace a tree’. Com. Takahashi raised an interesting
point about the statistics; when the funds have been given to plant a tree, if in fact the tree is planted
or multiple trees are planted; it would be good information for the community to know that it is being
done. Agreed with attorney’s point of cumulative effect.
• Said she understood the one tree removal; it is one tree, but long term it is one tree for every
household, it is cumulative and that can be an issue without any mitigation. Not knowing the
distribution of trees which would be onerous to survey, the 10 to 24 does seem to cover most
residential trees in our area and it is good to have that alternative. The fee to have a tree removed is
$2000 to $2500, which is costly. She suggested reducing the permit fee to about $50 so that it is not
such a financial burden on the homeowner.
Com. Brophy:
• Said he did not feel the argument held up to serious analysis that if they allowed one to cut down a
tree, it would lead to everyone wanting to cut trees down. Trees are born, they grow and they die.
People cut down trees without permits, but they also plant trees without calling city hall, and he did
not feel there is a significant difference in the number of trees.
• There were many trees before there was any ordinance, to suggest that the tree ordinance is the only
thing standing between them and a barren wasteland doesn’t hold up to any kind of reflection. People
in town take large trees seriously, such as oaks and other specimen trees mentioned and the city
should try to provide some level of protection for them.
Cupertino Planning Commission December 10, 2013
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• Said the framework suggested in the slides shown have merit, but he also would recommend for those
trees that are essentially dangerous to the community there needs to be an adjustment to reflect those
categories of trees mentioned. He noted that he would mention in his report of the Mayor’s meeting
recently held, that the city is in negotiations in a lawsuit regarding a cracked sidewalk.
• Said he supported the current tiered system; relative to the 10 or 12 inches he supported the arborist’s
recommendation.
Com. Gong:
• Said she preferred the additional option; but agreed with Com. Brophy that if there is an impact to
public land, sidewalks, walkways, anything involving the public, there should be an exemption of
such or a mitigating factor whereas; if a resident is not able to financially remove the tree and it is
causing public issue, the city should take care of it; it should be the city’s responsibility to maintain
public safety.
Chair Sun:
• Said his choice for the tree ordinance is to protect the private property; whenever people have a tree
planted in their back yard or as long as it didn’t encroach to the other people’s property, it is their
right to maintain it as long as it doesn’t do public harm to the other people’s property. Relative to
diseased or dying trees, before they seek a professional service, city staff has an obligation to go there
and do the investigation; it is not a difficult job to do the evaluation unless they are confronted with
extreme difficulty. A judgment should not be made and then hire a consultant and expect the resident
to pay the fee or the city. He said he agreed with other commissioners about the mitigation; first to
ask the owner to do the mitigation, but for the city there is the alternative instead of asking the
property owner to pay the fee, pay the fee to the public to plant the tree, provide some incentive if
they do the public planting they would receive a dollar amount, instead of punishing them for
something that occurred on their private property. Said he agreed with Alternative 4.
Aarti Shrivastava:
• Said that staff has sufficient input to be able to give the Council an indication of the Commissioners
preferences and ideas. She summarized that two Commissioners supported Alternative 4, three for
the additional option. Incentives were provided for voluntary tree planting and a variety of options
for either no mitigations for dead or diseased or trees that have to be removed vs. the city taking care
of trees that are affecting public property and sidewalks. The input will be forwarded to Council for
further direction, and based on the direction received staff will submit a revised ordinance for review
at a public hearing. The further away from mitigation and tree protection, the further they will get
into EIRs and having some circumstances where they cannot mitigate environmental impacts. Staff
will explore those with the environmental consultant and provide that information to the Council.
Com. Lee:
• Asked if the other three commissioners discussed the penalty; did they want to keep the flat penalty
per tree or size and health because the City Council wants some direction on penalties and fees.
Aarti Shrivastava:
• If it is clear that a tree is dead or it is negatively affecting a structure, staff will go and look at it; no
arborist report is prepared, no noticing is done, and no fees are charged. If the tree still has leaves, it is
more difficult to determine its status and an arborist is consulted. There is still no charge in terms of
staff time or noticing. The penalty is for people who remove trees without having a tree permit.
Typically they are turned in by a neighbor. Is there a recommendation to keep it a flat fee or make it
more complicated by requiring conditions, size, because it is hard to figure out what the size is once it
is cut, unless it has been documented before; and it needs an arborist to determine what the fee is.
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Com. Brophy:
• In general for fees or if looking at incentive structures, he said he felt it was important to have a
simpler system over an intellectually justified one; the staff has to administer it and it has to be a case
where people who are affected can understand it. Said he would rather be less creative and be more
straight forward.
Aarti Shrivastava:
• Questioned if the recommendation was to keep the flat fee which is what staff is recommending in
this case because it is a complicated issue, and they don’t want to complicate it more by having to
hire an arborist just to figure out what the fee is.
Com. Takahashi:
• Said he agreed with Com. Brophy’s recommendation because the arborist would have to do an
autopsy and determine it wasn’t a protected tree in the first place, and if there is going to be some
subjective element to that, it will create contention. He asked staff if they could estimate how many
specimen trees are removed without permit.
Aarti Shrivastava:
• Said it was difficult to ascertain because they would have gone through a retroactive tree removal
permit. Relative to the issue of fees, the intermediate process discussed removes an additional fee;
presently about $300 to $400 for noticing is taken in, and without noticing costs, it is reduced. The
process determines the fees depending on how much it would cost to notice.
Com. Gong:
• Asked how often staff was called in annually to determine if a tree is dead; and when called out, how
do they determine if the tree is indeed dead, or do they need to call in an arborist.
Simon Vuong:
• Staff will take a photo of the tree and make the determination if the tree is dead or just dormant.
There are a few occurrences per month on average. If staff cannot make an accurate determination
they will seek a consulting arborist’s advice.
Com. Brophy:
• One minor thing not covered; consideration is being given to add the Douglas Fir to the specimen tree list; he
said it should be noted that the Douglas Fir doesn’t grow on the flat lands in its native form and before it is
added to the list, although it is a nice tree in many ways, it demands a great deal of water to be kept alive and it
encouraging planting of Douglas Firs on the flat lands may not be an environmentally sound decision.
Chair Sun closed the study session.
NEW BUSINESS
3. Cancellation of the December 24, 2013 Meeting
MOTION: Motion by Com. Takahashi, second by Com. Gong, and unanimously carried 5-0-0
to cancel the December 24, 2013 Planning Commission meeting.
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee: No meeting
Cupertino Planning Commission December 10, 2013
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Housing Commission: No meeting
Mayor’s Monthly Meeting With Commissioners:
• Com. Brophy reported that the Library Commission appointed a new poet laureate; there is a new
librarian on board; there is a technology sub-group and looking at adding additional space to the
community room; Library Foundation is looking at purchasing a new 3D printer.
The Public Safety Commission:
• Encouraging people to walk, carpool or bike to work. There are funds available for the program; a
new app is available to get people enrolled; looking at putting defibrillators in various locations.
Fine Arts Commission:
• Submitted a catalog of images of public art approved for private and public projects as part of the
GIS app and also a pdf version of the artworks on the city website.
Bicycle and Pedestrian Commission:
• Planning for next year; working on survey and campaign to encourage people to bike to work and
working on getting Cupertino to be designated bike friendly, and encouraging children to ride more.
Parks and Rec Commission:
• New course offerings available
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
Aarti Shrivastava:
• Reported that the Planning Commission would be reviewing the General Plan Amendment in 2014
and plan to bring a report on alternatives being recommended by staff and a consultant based on the
input. She reported on meetings held and presented a progress report on items staff is working on.
Staff is also embarking on the housing element and expect to get the housing element certified by
ATD by the end of January 2015. Recommendations for the 2014 work program will be discussed at
the first meeting in January.
Chair Sun thanked the Commissioners for a successful 2013.
ADJOURNMENT:
• The meeting was adjourned to the January 2014 meeting.
Respectfully Submitted: ________________________________
Elizabeth Ellis, Recording Secretary