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Steve Lynch, Associate Planner, presented the staff report.
Councilmember Chu asked why the measurement of a protected tree (greater than 38 inches in circumference) currently measured at 4 feet was recommended to be changed to 4 and ½ feet. Planner Lynch stated that the measurement of 4 feet was previously chosen (instead of the International Society of Arboriculture (ISA) of 4 and ½ feet) because it was thought that 4 feet would be a simpler and more convenient measure. However, it has become a source of confusion particularly for professional arborists who use the 4 and ½ foot measurement in standard practice; therefore, a modification to the Tree Preservation Ordinance to measure the circumference at 4 and ½ feet would bring Sunnyvale into conformance with ISA standards.
Councilmember Chu asked what would occur if a citizen asked for a tree to be removed that was in the 30% ranking table. Leonard Dunn, Urban Landscape Supervisor, stated that the formula is used to determine a value. He stated that many factors affect the value of the tree including the species itself, tree condition and location and a tree ranked at 30% could have a low base value after all the factors are considered.
Councilmember Chu asked if a tree had a 38-inch circumference and it was considered to be a 50% value tree, would that mean that the arborist could, on an administrative basis, say that the tree could be removed. Planner Lynch stated a tree ranked at 30% or lower would be an automatic removal, regardless of the age or condition (if approved by species). He stated that if the tree ranking was above the 30%, it would fall under the normal process.
Councilmember Hamilton asked if there were any thought of adding root damage to the “Definition of Hazard” section. Planner Lynch stated that although it is not specifically identified in the Hazard section of the report, a large root that was lifting the sidewalk could definitely be construed as a hazard.
Vice Mayor Lee asked why the Modesto Ash had only a 10% rating. Supervisor Dunn stated that the tree has a very short life and is besieged with a disease; therefore, making it less desirable.
Vice Mayor Lee verified that the Liquidambar is now easier to remove based on the Ordinance that Council approved this past year.
Vice Mayor Lee verified that Council could have an Alternative that would increase the penalty for illegal tree removals.
Vice Mayor Lee referred to the tree removal penalties in the section listed on Attachment E, page 4 and asked what were the range of penalties levied over the last few years. He asked how staff determines the level of negligence (for example does intentional removal carry a higher penalty than a negligent removal). Planner Lynch stated the City has not utilized the penalty process since typically there is negotiation before the City would get to that point. He stated if a citizen removes a tree, it is considered negligent behavior.
Vice Mayor Lee asked David Kahn, City Attorney, if the current code is too cumbersome to enforce any of the penalties, or did he think the suggested amendments would make the process more enforceable. City Attorney Kahn stated that since the fines are fairly substantial, property owners are willing to negotiate with the City to reach a compromise before going to court on a Civil Violation Order. He stated he did not feel the process was overly cumbersome.
Vice Mayor Lee asked how many illegal tree removal cases are negotiated a year. Planner Lynch stated approximately one or two a year. Vice Mayor Lee asked what the range of fees imposed for these violations had been and Planner Lynch stated the City has not collected any fines from a residential property owner, but there have been fines from commercial developers.
City Manager Chan stated that tree removal fines are not a revenue source for the City; instead they are in place to support the City’s goal of compliance with the Ordinance.
Vice Mayor Lee asked when the amount of the fines were added to the code and Planner Lynch stated these are the original figures and were put in place in 1991. Vice Mayor Lee verified that these penalties have not been increased since 1991 and have not been adjusted for inflation.
Councilmember Hamilton verified that within Alternative No. 1 (B) the administrative procedures are not new ;instead, staff is requesting to have their existing processes codified with some additions and clarifications such as requiring a formalized hearing with an appeal process; staff to have the ability to determine the value of an illegal tree removal; and the ability to enforce that the property owner is responsible for the value of the tree they remove.
Councilmember Hamilton asked what is the average value of a tree and Supervisor Dunn stated the average is between two to four thousand dollars.
Councilmember Hamilton asked why the definition of “tree removal” is not listed in the recommendation. Planner Lynch stated staff is recommending to have the definition of a tree removal added as listed under Alternative No. 1 (F) and that the actual definition is included on Attachment A, page 2. Supervisor Dunn stated that the definition of a tree removal is once the tree is materially destroyed, not necessarily totally removed.
Councilmember Chu confirmed with Supervisor Dunn that Sunnyvale is considered Northern California, Coastal Influence on the chart contained on Attachment H.
Robert Paternoster, Director of Community Development, noted he received a citizen email this afternoon sharing comments (could not attend tonight’s meeting) that Council should focus on City-owned trees and not privately owned trees.
Mayor Swegles opened the Public Hearing at 8:00 p.m.
Mary Blacksher spoke about a huge pine tree in her backyard. She stated it is a hazard and the City has told her that it may not be removed. Ms. Blacksher stated this tree sways in the wind, and she fears it will eventually fall on her house. She stated she feels there are too many restrictions on removing trees.
Yurly Akseniw stated he supports Ms. Blacksher. He stated he would like Council to consider adding an exception for tree removal for health reasons. Mr. Akseniw stated the City Arborist said it is a strong tree and won’t come down but Mr. Akseniw asked what would happen if it does come down and who would be responsible.
Mayor Swegles asked the City Attorney to respond to Mr. Akseniw’s question on liability. City Attorney Kahn stated that because it is a tree on private property, if the tree came down, the City would not accept responsibility for the tree.
Mr. Akseniw asked if that would be true even with the denial of their request from the City for the tree removal. City Attorney Kahn stated that if the City made a determination that the tree was not a hazard and the tree came down, the City would not accept liability for that tree.
Connie Jones spoke in favor of the City’s tree removal program and stated the City does need to have a good appeal process.
Werner Gans complemented the staff for putting together a comprehensive report. Mr. Gans stated that the City of San Jose has a threshold of an18-inch diameter before a tree permit is needed whereas; Sunnyvale has 12 inches and asked what the basis for the 12 inches is. Planner Lynch stated it is very difficult to compare Tree Preservation Ordinances with cities since each city has subtle reasons as to why their ordinance is different. Mayor Swegles asked if the City has anything higher than 12 inches and Supervisor Dunn stated that if it meets 12 inches or higher it is covered by the Ordinance. Mayor Swegles asked if the species of the tree would make a difference and Supervisor Dunn stated that all species are equal as it stands, but that is something that could be considered.
Mr. Gans asked about space available for trees citing an example of his neighbor who has five large evergreen trees; therefore, he feels the City needs to also look at the space for the trees.
Councilmember Moylan asked Mr. Gans if he had looked at the revised Ordinance (Attachment A, page 3) which addresses two new criteria points under which a tree permit can be granted. He stated the criteria addresses property that has been overly landscaped and where a tree has outgrown its useful landscape value. Mr. Gans asked if this new Ordinance passed, would the speaker with the large tree in her backyard be able to have it removed. Councilmember Moylan stated he felt it could be under a couple of different clauses in the proposed ordinance. Planner Lynch verified Councilmember Moylan’s interpretation of the proposal as correct.
Harriet Rowe spoke stated she feels the 38-inch diameter at four feet should not be changed, and mentioned additional specific items that she disagreed with on the report. Councilmember Chu stated that 4 ½ feet for the diameter measurement is the industry standard, but that Sunnyvale decided to use the 4-foot measurement for simplicity reasons. However, for technical reasons, it makes better sense to use the industry standard. Ms. Rowe stated if the height is raised, then the diameter should be changed also so that the measurements work out to be the same.
Harry May spoke about trees that are too large for the property (such as two trees that he has in his front yard) and asked under the new proposed Ordinance, who would make tree removal determinations. Planner Lynch stated that decision would be made by the City Arborist using professional industry standards. Councilmember Howe verified with Mr. May that he had applied for a tree removal permit more than once from the City of Sunnyvale. Mr. May stated he first applied for a permit and was denied so he appealed and then was approved to remove the smallest tree of the three on his property. He then reapplied once for the second smallest, and then for both trees, and was denied both times. Councilmember Howe verified with Mr. May that the appeal process was clear to him, and that the appeal process cost was about $110.
Councilmember Chu verified with staff that there are trees that are excluded from the tree removal process such as preservation trees. Councilmember Chu stated he was on the Planning Commission when Mr. May presented his appeal and remembers when the property was developed and sub-divided, a certain number of trees were designated to be protected heritage trees and stated those are the trees Mr. May is wishing to have removed.
Councilmember Spitaleri asked staff if the decision to remove a tree is based on industry standards and the City Arborist. Supervisor Dunn stated there are many factors that are considered when deciding if a tree should be removed and those factors come from the industry standards.
Lois Weil spoke about a large tree in her backyard that has destroyed her yard and is affecting the neighbors. She stated that she was denied a removal of the tree and urged Council to approve the proposed changes.
No one else wished to speak and Mayor Swegles closed the Public Hearing at 8:31 p.m.
Vice Mayor Lee asked staff why one of the changes they are asking for is to increase from 7 to 10 working days for tree permits and Planner Lynch stated the reason for the change was due to the number of permits they receive a year.
Councilmember Spitaleri moved and Vice Mayor Lee seconded to approve
Alternative No. 1: Adopt modifications to the existing Tree Preservation Ordinance that include:
- Required Findings: Adding a finding if a property has sufficient landscaping or is over landscaped; Adding a finding to allow removal of overgrown, but healthy trees.
- Penalty Process for Illegal Tree Removals: Add administrative procedures that would require the aesthetic value of the tree to be replaced.
- TRP Appeals: Clarify that only applicants can appeal a TRP decision.
- Development of Property: Amend code to require a bond for protecting trees during construction; Amend code to require mitigation measures for new landscaping.
- Solar Access: Amend code to clarify solar access rights and protection of significant sized trees.
- Additional Ordinance Clarification Issues: Add the definition of “tree removal” to code; Increase tree measurement location to 4 ½ feet above ground; TRP permit valid for one year; Require Latin names to be used in tree surveys; Change TRP timeline to at least 10 days.
Vice Mayor Lee made a friendly amendment to add to Section 19.94.160 (a) that if the tree removal is clearly an intentional violation that the penalties shall be doubled and he asked the City Attorney to correct his wording of this amendment to state it more accurately.
City Attorney Kahn stated that the City does have discretion with the range of penalties if the removal is deemed negligent or intentional.
Vice Mayor Lee stated he is attempting to give the City more leverage given the fact that these fines have been in place since 1991.
Councilmember Spitaleri did not accept the friendly amendment.
Vice Mayor Lee offered a friendly amendment to add to the section 19.94.060 an additional allowable condition as item C8 in which a property owner and the immediate neighbors may apply for tree removal if the tree presents an excessive nuisance.
Councilmember Spitaleri asked how that would be determined should one neighbor feel the tree is a problem and the other does not. Director Paternoster stated that both the property owner and the neighbor would have to agree it is an excessive nuisance.
Councilmember Spitaleri accepted the friendly amendment.
Councilmember Moylan moved to make a formal amendment to cancel the friendly amendment regarding excessive nuisance. He stated nuisance is too vague a term.
Councilmember Howe seconded the formal amendment and asked Vice Mayor Lee to address Councilmember Moylan’s formal amendment.
Vice Mayor Lee stated that what he meant by excessive nuisance would affect both the property owner and the immediate neighbors. He stated the neighborhood would know best what to do about the tree instead of the City. Vice Mayor Lee stated he is trying to balance the needs of the neighborhoods and the City.
Mayor Swegles offered that Vice Mayor Lee set more definite parameters. Vice Mayor Lee stated that his criteria was specific in that it stated both the property owner, and all immediate neighbors that are affected by this tree, must agree on the nuisance.
Director Paternoster stated that Vice Mayor Lee may want to clarify his amendment to state all neighbors (including those adjacent and abutting to the property) must declare the tree to be a nuisance.
Vice Mayor Lee agreed and stated that his addition to the criteria is not an automatic approval.
Councilmember Moylan stated that his formal motion still stands.
Vice Mayor Lee stated that if the applicant were to use this provision to apply for the tree removal, they would need to collect the signatures of all the neighbors before submitting the application.
Councilmember Hamilton stated that a finding in Alternative No. 1 (A) seems to address what Vice Mayor Lee is attempting to achieve. She stated that the section which reads as: “Adding a finding to allow removal of overgrown, but healthy trees”, seems to cover what the friendly amendment speaks to.
Vice Mayor Lee stated that if a homeowner and the neighbors have a real problem, and the tree does not fall into the findings, his nuisance proposal would allow them one more option. He stated the ultimate decision would come from the City Arborist, and that this additional criteria is not a loophole to allow for tree removals.
City Attorney Kahn stated that a problem tree would never meet the definition of a public nuisance, rather an undefined public nuisance, and would be hard for staff to apply that criterion. City Attorney Kahn stated that it would be prudent to apply a better definition of a tree nuisance.
Vice Mayor Lee stated the applicant would need to supply clear evidence that the tree is not desired for stated reasons to obtain the permit.
Councilmember Howe suggested that Vice Mayor Lee allow this item to be a consideration that the Planning Commission can use only upon appeal and not allow the City Arborist or Director of Community Development to utilize that item.
Councilmember Spitaleri stated he is not in agreement with the formal amendment by Councilmember Moylan because staff stated that the proposed criteria still does not allow for automatic tree removal, rather it is additional criteria that the applicant can use in applying for a permit.
City Manager Chan clarified that under the section where the tree nuisance option would be added, the applicant only has to meet only one of the criteria points and a tree removal would be granted.
Councilmember Moylan spoke to his formal amendment and stated that this friendly amendment would undo the Tree Protection Ordinance and stated that limiting it to the Planning Commission would still have the same drastic effect toward tree protection. He stated that more conditions added to the ordinance will create more opportunity for trees to be removed, and stated that staff’s proposal is already loosening the Tree Protection Ordinance.
Formal Amendment carried 6-1 (Vice Mayor Lee dissented)
Vice Mayor Lee made a friendly amendment to have the tree nuisance criteria added to Planning Commission. City Attorney Kahn stated this could be added in the same section (19.94.060) and stated to be considered only by the Planning Commission.
Councilmember Spitaleri did not accept the friendly amendment.
Katherine Chappelear, City Clerk read the title of the Ordinance.
Motion carried 7-0
Councilmember Howe asked City Manager Chan when she presents the fee schedule to Council; he would like an estimate on the cost of processing a tree removal permit.
Councilmember Moylan stated he would sponsor a study issue on the ISA “Species Classification” List.
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