103-B - PC Staff Report (12-10-13).pdf
PLANNING COMMISSION STAFF REPORT
Agenda Item No. Agenda Date: December 10, 2013
Application: Study session for amendments to Protected Trees Ordinance
(MCA-2013-01)
Location: Citywide
APPLICATION SUMMARY
Study session to get direction on amendments to the Municipal Code Chapter 14.18 - Protected
Trees Ordinance.
BACKGROUND
On November 5, 2012, the City Council conducted a study session to consider the scope and
process of possible amendments to the Protected Tree Ordinance (Attachment 2). The Council's
direction consisted of two steps. Step one was to present an Ordinance amendment to address
issues pertaining to public trees and to lower the level of unlawful tree removal penalties from
misdemeanor to infraction. Step two was to consider future ordinance amendments pending
additional analysis on the following issues:
Streamline and revise the tree removal process in R1/A1/A/RHS/R2 zones
Review the size of trees in diameter for "protected" specimen trees
Encourage retention of specimen trees, regardless of size
Review and update the specimen tree list
Consider if greater penalties are warranted for unlawful removal of larger trees
On March 19, 2013, the City Council amended the Tree Ordinance to clarify references to public
trees and to modify penalties from a misdemeanor to infraction (Attachments 1 and 4). The
City Council directed staff to initiate the public process for a comprehensive Tree Ordinance
amendment to study and address the following specific areas:
a) Review the “specimen” tree list to include only native trees and remove non-native trees
and invasive species
b) Protect all native “specimen” trees regardless of size
c) Create an approach that allows a more streamlined process for removal of “non-mature,
specimen” trees in R1/A/A1 and RHS zones as well as for R2 properties
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333
Citywide Protected Trees Ordinance - Study Session December 10, 2013
d) Provide a definition of “mature” vs “non-mature specimen” trees to help define the
streamlined process noted above
e) Continue to encourage replacement and renewal of the City’s urban forest
f) A process to encourage voluntary tree planting
g) A more effective approach to review the illegal removal of trees.
DISCUSSION
Proposed Draft Ordinance for Chapter 14.18, Protected Trees
Based on Council direction at the March 19, 2013 meeting, staff has prepared a draft ordinance
for Chapter 14.18, Protected Trees. The key features of the proposed ordinance are discussed
below:
(a) Specimen Trees
Based on a review and discussion of the specimen tree list with the City’s consulting
arborist, the list of specimen trees is being revised as follows:
Specimen Tree Retain Comments
Quercus species Yes
Aesculus californica (California Buckeye); Yes
Acer macrophyllum (Big Leaf Maple); Yes
Cedrus deodara (Deodar Cedar); Yes
Cedrus atlantica 'Glauca' (Blue Atlas Cedar); Yes
Umbellularia californica (Bay Laurel or
California Bay);
No Tree presents issues regarding structural
integrity, decline, and safety. Also hosts to
Sudden Oak Death.
Platanus racemosa (Western Sycamore) Yes
Specimen Tree Replacement Retain Comments
Pseudotsuga menziesii (Douglas Fir) Proposed
Trees are fast-growing and perform best in
forested settings versus small lots, and are native
to the Santa Cruz mountain area. Minimum
trunk diameter of 18” or greater should be
considered for threshold of protection.
(b) Protection of Native Specimen Trees
Based on the finalized list of Specimen trees, staff is proposing the following process:
The standard removal permit process for the mature or larger specimen trees - removal
applications for trees below the mature size would not be required to provide an
arborist report for removal. Only mitigation will be required. Mitigation could be in the
form of in-kind replacement of removed trees somewhere on-site, or payment of an “in-
lieu” fee which would cover the cost of planting an equivalent sized tree on public
property off-site.
Tree removal application process for mature trees – Tree removal applications for
mature trees will require an arborist report and replacements.
Citywide Protected Trees Ordinance - Study Session December 10, 2013
(c) Streamlined Process for R1/A1/A/RHS Zones and Projects in R2 Zones
The above approach will be implemented for all projects in R1/A1/A/RHS zones and
projects in R2 zones. Planned development (P) zones will continue to require arborist
reports for all projects that have an approved landscape plan as part of the approval.
(d) Mature vs Non-Mature Trees
Currently, the ordinance defines specimen trees as those of a certain species and having a
minimum single-trunk diameter of 10 inches (31-inch circumference) or minimum multi-
trunk diameter of 20 inches (63-inch circumference) measured four and one-half feet from
natural grade. The City’s consulting arborist has stated that, at the time when a tree grows
to about 8”-10” in diameter, it transforms from a shrub-like to a tree-like form, securing
itself as an established tree. The understory, which is the lower branch area, begins to die off
and the plant begins to resemble a tree with the top canopy starting to mature. This lower
branch area forms a protective barrier over the root system and is critical for the health of
the tree. Each tree has a different growing pattern but an average of 10-12 inches could be
established as a typical size for a mature tree. Staff is therefore recommending defining a
mature specimen tree as one that has a diameter to 12 inches in diameter when measured at
four and one-half feet from natural grade.
(e) Process for Illegal Removal of Protected Trees
A review of other cities, similar to Cupertino, indicates that most cities’ replacement
requirements for illegal tree removals are larger than those required for a regular tree
removal permit (See Attachment 3). Tree removal fees for the illegal removal of public trees
are based on the diameter inch for the removed tree. Heritage trees or unusually large trees
that are removed illegally are required to provide larger replacements or penalties based on
landscape unit value. In preliminary discussions, the consultant arborist recommends the
approach adopted by these other cities rather than requiring larger fees for permits. The
funds from the penalties could be put into the City’s street tree replacement fund and
thereby achieve the goal of protecting the City’s overall tree canopy. Staff would like further
direction from Planning Commission and Council if this approach for penalties for tree
removals is appropriate.
(f) Process to Encourage Voluntary Tree Planting
The ordinance contains the option to include a new process for property owners in
R1/A1/A/RHS/R2 zoning districts who desire to voluntarily plant specimen trees. Under this
proposed process, property owners may register these trees at planting with a tree
registration, and record it on their deeds (similar to privacy protection trees). These
voluntarily planted and registered trees would not be subject to tree removal permits or
mitigation requirements, if removed.
Staff would like to note the following two issues related to this process that could make it
cumbersome for both applicants and staff:
Recording voluntarily planted specimen trees will require the recording of existing trees
and their locations on the site. A survey of the site to determine location and the type
Citywide Protected Trees Ordinance - Study Session December 10, 2013
and size of existing and voluntarily planted trees will be required to ensure that the
appropriate trees are recorded on the deed. This could result in cost to the applicant to
hire a qualified arborist and a surveyor.
The process will likely result in significant staff time spent in administering and
reviewing voluntary tree planting and removals.
While the proposed ordinance includes the voluntary tree planting program, staff is not
recommending it since it would create an onerous process for applicants and in the
administration of the program. If the Planning Commission wishes to keep the voluntary tree
planting program, staff will forward the Draft Ordinance to the Council with this provision.
Community Meeting
On October 30, 2013, a community meeting was facilitated to discuss the proposed amendments
as directed by City Council, with about 10 residents in attendance (Attachment 5). Comments
received at the meeting are summarized below:
Ordinance is too onerous and a burden on property owners and staff should reexamine
the ordinance for residential properties
It is invasive for the City to require tree replacements and or insistence on protection of
trees, except for privacy screening; more flexibility should be given, especially to trees
which are not located in the front yard
Costs for removing trees, securing permits, and hiring professionals is prohibitive, as
well as tree replacements and in-lieu fees
Residents want more choice in selecting trees, and generally wanted more freedom and
flexibility with regard to requirements for a tree removal permit
Provide an approved list of arborists to choose from, as well as more educational
materials of tree palette, size, and heritage
There is currently no permit required to remove small specimen trees, but the draft
ordinance proposes a permit which will create additional barriers for tree removal
A voluntary tree planting program would create a complicated and onerous process for
removal, and there are differing opinions as to whether or not the status of the tree is
lost when there is a transfer of the property to another owner; program should also be
considered for only larger lots, not smaller lots
Upon reviewing comments from residents and applicants who attended the meeting, staff has
prepared some additional options for the Planning Commission to consider. These are
discussed in detail below.
Alternatives
Staff has prepared a spectrum of five alternatives to the existing ordinance ranging from the
proposed ordinance to no ordinance (Attachment 6). The alternatives identify amendments that
could be made to the ordinance to streamline the process of tree removal or eliminate
regulations. The alternatives matrix also identifies varying levels of environmental review
required for each alternative (Attachment 6).
Citywide Protected Trees Ordinance - Study Session December 10, 2013
The table below briefly summarizes the advantages and drawbacks for each alternative
identified in the attached alternatives matrix:
Given the concerns expressed at the community meeting and the continuation of complaints
received by staff over the removal of trees from residents, staff believes that the following three
Pros Cons
Proposed
Ordinance per
prior Council
direction
No noticing or arborist report
required for specimen tree
removals up to 12” diameter
Raise threshold for requiring
arborist reports for specimen trees
(from 10” to 12”)
Establish tree registration program
for voluntary trees, minimal
environmental review
Tree removal permit required for
specimen trees of all sizes
Upfront costs to resident to register
tree including survey costs
Additional staff time spent in
administering Voluntary Tree
Planting Program
Alternative 1
(Streamlined
Process for R1,
R2, A1, A,
RHS)
Raise threshold for requiring
arborist reports for specimen trees
(from 10” to 12”)
Streamlined process for R1, R2, A1,
A, & RHS properties
Retains protection for privacy trees
No Voluntary Tree Planting
program.
Specimen trees 10” or 11” in diameter
will no longer be protected
New findings for environmental
review to be determined
Alternative 2
(No
Restrictions on
R1)
No restrictions for R1 properties
for tree removals
No protection for specimen trees,
privacy trees, or heritage trees,
Potential significant environmental
review for ordinance amendment
Environmental review uncertain for
each individual tree removal project
Alternative 3
(No Specimen,
No Approved
Development)
No restriction for a majority of
private trees in the City
Retains protection for privacy trees
No protection for specimen trees or
approved development trees
(commercial, industrial, larger
planned residential projects), which
includes the majority of private trees
in the City,
Potential significant environmental
review required
Alternative 4
(No Specimen)
No restriction on specimen trees in
R1, R2, A1, A, & RHS zoning
districts
Retains protected for privacy trees
No protection for specimen trees for
R1, R2, A1, A, and RHS properties,
Potential significant environmental
review required
Alternative 5
(No
Ordinance)
No restrictions on trees on private
properties
No protection for specimen trees,
privacy trees, approved development
trees, or heritage trees
Significant environmental review
required
Citywide Protected Trees Ordinance - Study Session December 10, 2013
alternatives provide a balance between reducing some of the burdens on property owners in R1,
R2, RHS, A1, A and RHS zones while ensuring the protection and renewal of the City’s urban
and hillside forests: The alternatives are proposed in order starting with the most lenient to the
least lenient.
Satisfies City Council Direction
(a) Specimen
Trees
(b) Protect Native
Trees (regardless
of size)
(c) Streamline
Process
(d) Mature v.
Non-Mature
(e) Illegal Tree
Removals
(f) Voluntary
Planting
Alternative 1 – This
would retain the
current Tree
Ordinance. The two
changes would be as
follows:
The size of
specimen trees
to be protected
would increase
from 10 inches
in diameter to 12
inches in
diameter.
In addition to
R1, RHS, A1 and
A zoned
properties, R2
properties
would not need
to protect all
trees on the site.
Only removal of
privacy planting
and specimen
trees would
require tree
removal permits.
Not
Recommended
Keep the current
Tree Ordinance –
this keeps the
existing process.
Not
Recommended
Proposed Draft
Ordinance – the key
features have been
discussed in detail
earlier in this report.
Not
Recommended
Citywide Protected Trees Ordinance - Study Session December 10, 2013
Staff is seeking direction from the Planning Commission on each of the features discussed in the
Proposed Draft Ordinance as well as the preferred alternative.
Fees
In addition to proposed revisions to the Protected Trees Ordinance, staff is reviewing the fee
structure for illegal tree removals. Currently, an illegal tree removal requires the offender to
pay a retroactive tree removal fee/fine of $3,128 per illegal tree removed, which contributes to
the City’s tree planting fund. In addition, replacement trees commensurate with the diameter
size of the removed tree must also be planted. However, the City’s consulting arborists have
indicated that a penalty which produces more replacement trees and is based on the tree’s age,
aesthetics, size, cost, environmental quality, appearance, and location could be considered as
other surrounding communities have implemented (Attachment 3).
The City’s Public Works Department, in 2012, adopted a formula to assess the value of illegally
removed public trees. For public trees, first, the removed tree is evaluated based on the size of
the tree. Then, a species rating is applied based on the species of the tree removed. Less
valuable species are assigned lower ratings (i.e., oaks are more valuable than fruit trees).
Finally, a condition rating is applied to the tree based on whether the tree is categorized as
good, fair, or poor. Under this formula, a large oak tree in good condition will require a
significant replacement fee, whereas a small fruit tree in poor condition will require a nominal
fee. In addition, the Public Trees Ordinance allows first time offenders to be subject to only 10%
of the fee calculated under the formula, whereas repeat offenders and intentional actors and
professionals are subject to the full replacement tree value (Attachment 7). However staff
would like to note that the process to even determine the retroactive fine requires additional
cost for an arborist to evaluate the condition of each tree. This may not be possible if the tree
has already been removed with no prior record of its condition or size.
Staff would like to note the following two issues with such an approach:
In most cases, after a tree is removed, it is not possible to gauge the condition, quality and
appearance of a tree. However, tree species and an estimate of the trunk size can be
obtained from the base of the tree.
Determining the fee based on size and quality of a tree will require an arborist, which will
add another fee to the permit.
The current process avoids both issues.
Staff is seeking the Planning Commission’s preference on the fee schedule. Options include
continuing with the current approach of a flat retroactive fine for each tree or to create a
formula similar to that for street trees. While the City Council has the authority to amend the
fee schedule and fine structure, staff will provide the Planning Commission’s input for Council
consideration for illegal tree removals on private properties.
Citywide Protected Trees Ordinance - Study Session December 10, 2013
ENVIRONMENTAL CONSIDERATIONS
At the March 19, 2013 City Council meeting, the council authorized a budget of $65,000 to study
the environmental effects the potential amendments to the Protected Trees Ordinance would
have. Since then, staff has begun the environmental review process by executing a contract
with environmental consultant, David J. Powers and Associates. Staff has also worked closely
with the consulting arborist, David L. Babby, to obtain advice and guidance on technical
questions related to trees.
Upon further guidance from the Planning Commission and City Council, staff will continue to
work with the consultants on the environmental review. However, depending on the direction
of the amendments and changes to the scope of the project may require that the level of
anticipated environmental review be different from than the initially Mitigated Negative
Declaration identified and additional funding may be necessary.
PERMIT STREAMLINING ACT
This project is legislative in nature and not subject to the Permit Streamlining Act (Government
Code Section 65920 – 65964).
PUBLIC NOTICING & OUTREACH
The municipal code does not require public noticing for study sessions, since it does not involve
action or decision by the Planning Commission. However, a courtesy Citywide notice was sent
informing residents of the Community Meeting on October 30, 2013, the Planning Commission
meeting held tonight on December 10, 2013, and the City Council meeting to be held on January
21, 2014. The courtesy notice also included reference to a project website with the most up to
date information. The following is a brief summary of the noticing completed for the project:
NEXT STEPS
A second study session is tentatively scheduled with the City Council for January 21, 2014,
which will include review of the comments from this Planning Commission study session. After
further direction from City Council, an amended Protected Trees Ordinance will be presented to
the Planning Commission and City Council for their consideration and adoption.
Notice of Public Hearing, Site Notice & Legal Ad Agenda
Legal ad placed in newspaper
(at least 10 days prior to the hearing)
Courtesy citywide notice, with information on
Community Meeting, Planning Commission and
City Council Meeting
Community meeting held on October 30, 2013
Posted on the City's official notice
bulletin board (at least one week
prior to the hearing)
Posted on the City of Cupertino’s
Web site (at least one week prior to the
hearing)
Citywide Protected Trees Ordinance - Study Session December 10, 2013
Prepared by: Simon Vuong, AICP, Associate Planner
Reviewed by: Approved by:
/s/ Gary Chao /s/ Aarti Shrivastava
Gary Chao Aarti Shrivastava
City Planner Community Development Director
ATTACHMENTS:
1 – Chapter 14.18, Protected Trees, of the Cupertino Municipal Code
2 – City Council Staff Report dated November 5, 2012 regarding study session for protected
trees
3 – Tree Regulation comparison for cities of Cupertino, Saratoga, Los Gatos, Palo Alto & Los
Altos (Updated with Mountain View, Santa Clara, & Sunnyvale)
4 – City Council Staff Report dated March 19, 2013 regarding clarification of references to public
trees and modifying penalties fro violations, and budget authorization for future amendments
5 – MIG, Major Public Comments and Themes from October 30, 2013 Community Meeting
6 – Protected Trees Ordinance: Matrix of Options
7 – City of Cupertino, Schedule B - Engineering
G:\Planning\PDREPORT\MISCELL\2013\Protected Trees Ordinance PC Study Session 12-10-2013 (Final
Version).doc