April 4, 2006

REPORT IN BRIEF

The purpose for the study is to examine the City’s current tree preservation ordinance and explore whether or not the ordinance should be modified in order to meet the City’s goals as well as the needs of property owners. The report discusses a range of possible modifications and discusses the advantages and disadvantages of each option. The report is also an informational document providing background information on the City’s current policies and procedures related to tree preservation.

Staff is recommending modifications to the existing tree preservation ordinance that include the following: new findings for approving Tree Removal Permits, a new administrative process for illegal tree removals, clarification of appeal rights for Tree Removal Permits, new tree protection measures for developing properties, clarification of solar access rights, and other ordinance clarifications. The Planning Commission supported staff’s recommendations to the City Council with one modification. The Commission recommended the study and possible incorporation of the International Society of Arboriculture (ISA) tree classification list as a second phase of this study issue. Staff recommends this concept be evaluated as a potential study issue for consideration in December, 2006.

BACKGROUND

In December 2004, the City Council ranked this Community Development Study Issue as number seven for 2005. This item was also ranked in previous years but fell below the line for study. The study issue is in response to a variety of issues that have been raised by the public and staff over the past few years, as well as the City Council’s concern that it has been almost 15 years since the City’s adoption of the original ordinance.

Tree Preservation History

The City Council, in conjunction with Planning staff, studied the issue of tree preservation on several occasions prior to the adoption of the current Tree Preservation Ordinance in 1991. In 1981, staff focused on developing criteria for Heritage Tree designation and guidelines for Heritage Tree nominations. This was completed concurrently with the City’s adoption of the Heritage Preservation Ordinance. In 1987, City efforts culminated in the approval of the Protection of Vegetation During Construction Policy. Subsequently, in 1988, the Council adopted the Preservation of Mature Landscaping Policy, which regulated significant sized trees on multi-family residential properties (precursor to 1991 ordinance). During the studies conducted in 1987 and 1988, Council chose not to adopt an ordinance for preserving trees in single-family residential districts. At that time, Council and staff believed the disadvantages of a new ordinance outweighed the potential advantages and that clarifying the existing policies would net the same results.

Sunnyvale’s current tree preservation ordinance became effective on December 12, 1991 (Sunnyvale Municipal Code §19.49, see Exhibit A). The staff recommendation in 1991 (RTC 91-439) was to exempt single-family residences from the Tree Removal Permit requirement. The preservation of residential property rights was an important consideration in whether or not to include single-family properties. The Planning Commission recommended and the City Council adopted the ordinance to apply to all private property, city parks, and city-owned golf courses. The rationale was that all trees, regardless of the land use, were found to be community-wide resources benefiting the aesthetics of the City, the environment, and property values citywide. In 1991, many other Bay Area cities had already adopted similar tree preservation ordinances. Of the 15 cities in Santa Clara County at that time, eight cities regulated trees on private property and all 15 had City street tree regulations.

The following table summarizes the City’s past ordinances, policies, and studies relating to tree protection and heritage preservation.

Sunnyvale’s past and present policies pertaining to tree preservation have contributed to the City’s eligibility for the Tree City USA award from the National Arbor Day Foundation. The City has received this award every year since 1988.

EXISTING POLICY

Sunnyvale’s tree preservation ordinance regulates only trees on private property and in City owned parks and golf courses. The ordinance does not pertain to City street trees, which are regulated by SMC 13.16 (City Trees). In October 2005, the City Council adopted a new policy relating specifically to Liquidambar street trees located within the public right-of-way (RTC 05-316). At that time the Council allowed a limited number of trees to be removed annually and required replacement trees to be replanted. The scope of this study issue does not pertain to street trees.

Tree Preservation Ordinance

The tree preservation ordinance states that “significant sized” trees on private property are subject to the code’s requirements. Significant size is defined by the code as a tree 38 inches or greater in circumference measured four feet above ground for single-trunk trees. For multi-trunk trees significant size means a tree which has at least one trunk with a circumference 38 inches or greater measured four feet above ground level, or in which the measurements of the circumferences of each of the multi-trunks, when measured four feet above the ground level, added together equal an overall circumference 113 inches or greater.

The tree ordinance categorizes significant sized trees as protected and requires a Tree Removal Permit (TRP) be approved prior to their removal. Any tree measuring less than the above criteria for significant size is not considered protected under City code and may be removed unless otherwise protected by some other action.

Permit Process

TRPs are free applications and can be applied for on the City’s web site, at City Hall, or can be faxed into the Community Development Department. Only a property owner can apply to remove a tree from their property, not a lessee or renter. Following the submittal of a permit, the City arborist conducts a site visit to examine the subject tree. The arborist determines if one of the first two findings can be made (see Findings Required section below). Upon assessment of the tree, a recommendation is made whether or not to allow the tree’s removal. This recommendation is sent back to Planning and used as the primary source of information by Planning staff in rendering the final decision to approve or deny the TRP. If the arborist’s recommendation is to allow the tree removal, planning staff sends the applicant a letter stating the approval along with information regarding the requirements for a replacement tree or in-lieu fee (see Replacement Tree section below).

If the arborist’s recommendation is to deny the tree removal request, a planner also conducts a site visit to determine if the tree inhibits the property owner’s reasonable use or economic potential of the property (Finding #3). In this way, the two separate staff reviews work in conjunction to ensure that a thorough analysis of the request is completed. If the applicant does not agree with the staff decision, they have the right to appeal the application within 15 days. All appeals of staff’s decision are heard before the Planning Commission, whose decisions are final (no appeals to Council).

The TRP application process can take up to 10-working days to complete.

Findings Required

In order to grant approval of a TRP request in accordance with §19.94.060 of the ordinance, at least one of the following findings must be made:

(a) The tree is diseased or damaged;

(b) The tree represents a potential hazard to people, structures or other trees;

(c) The tree is in basically sound condition, but restricts the owner’s ability to enjoy the reasonable use or economic potential of the property, or unreasonably restricts an adjoining property owner’s use or economic potential of the adjoining property. In the event this is the sole basis for the application, the following criteria shall be used to evaluate the application under this subsection:

(1) The necessity of the requested removal to allow construction of improvements such as additions to existing buildings or incidental site amenities or to otherwise allow economic or reasonable enjoyment of property;

(2) The topography of the land and the effect of the requested action on water retention and diversion or increased flow of surface water;

(3) The approximate age of the tree relative to its average life span;

(4) The potential effect of removal on soil erosion and stability where the tree is located;

(5) Current and future visual screening potential;

(6)  Any other information the director of community development finds pertinent to the application.

The City arborist focuses primarily on the first two findings (a) and (b), while Planning staff evaluates permits based primarily on findings (b) and (c). The reasonable use of property finding (c) is more complex due to the subjective nature of the issue. This finding is the most contentious of the findings since it is open to interpretation.

When City staff evaluates City owned street trees for removal, the same set of criteria are used as the determining factors. The arborists generally focus only on the findings of diseased, dying, potential hazard to people or property, or age of the tree. They do not review trees based on visual potential, debris droppings, or the reasonable use or economic potential of the City property.

Relationship to General Plan

The following General Plan goals, policies, and action statements address the tree preservation ordinance:

Community Design Sub-Element

Goal A: Promote Sunnyvale’s image by maintaining, enhancing and creating physical features which distinguish Sunnyvale from surrounding communities and by preserving historic buildings, special districts and residential neighborhoods which make the City unique.

Goal B: Create an attractive street environment which will complement private and public properties and be comfortable for residents and visitors.

Action Statement B.1.e: Consider uniform and cohesive landscape themes for districts, major thoroughfares, City boundaries and neighborhoods.

Action Statement B.1.h: Continue to provide attractive canopy trees in residential districts.

Policy C.2: Review site plans to ensure the design is compatible with the natural and surrounding built environment.

Action Statement C.2.b: Continue to monitor and develop standards for the preservation of mature trees and landscaping and encourage the preservation of landscaping to be considered early in the site design.

Heritage Preservation Sub-Element

Goal 6.3B: To enhance, preserve, and protect Sunnyvale’s heritage, including natural features, the built environment and significant artifacts.

Land Use and Transportation Element

Goal C: Preserve and enhance an attractive community, with a positive image and a sense of place that consists of distinctive neighborhoods, pockets of interest, and human-scaled development.

DISCUSSION

A variety of issues have been raised by the public, staff, and City Council over the past few years, concerning the tree preservation ordinance. The issues raised by residential property owners primarily deal with the restrictiveness of the three required findings and the appeal rights for neighbors. The issues staff has raised include the current penalty process for illegal removals, the required findings, solar access rights vs. existing vegetation, saving trees during redevelopment of a site, and planting of large trees in small landscaped areas. The following section is a discussion of the most common concerns and opportunities for modifications to the ordinance.

Statistics

The following table summarizes TRP applications by year since 1993. The data does not include tree removal statistics related to development or construction of private property. For example, a new commercial development may be allowed to remove trees under a Special Development Permit approval and are not subsequently required to file a Tree Removal Permit. The data also does not reflect trees removed that are less than significant size.

As the above table shows, the majority of trees reviewed under the TRP process are approved by staff, with a yearly average approval rate of 89%. During the almost 15 year duration of the tree ordinance, there have been 24 appeals of staff’s decision (including years 1991-1992 not shown above). On average, 91% of TRP applications are for residential properties, leaving 9% of permits for all other non-residential properties.

Replacement Trees and In-Lieu Fees

When a tree is approved for removal through the TRP process, a replacement tree or in-lieu fee is typically required for each tree removed as a condition of approval. SMC §19.94.080 specifies that the City may determine appropriate mitigation measures to offset the effects of the removal. A condition of approval for one 15-gallon replacement tree is the most common mitigation measure. All applicants are also given the option of paying the in-lieu fee (currently $222 per tree) instead of replanting. The fee is based on the cost to purchase a 15-gallon tree and the cost of labor for the City to plant the tree.

Replacement trees must be at least 15-gallon size or greater and may be planted anywhere on the subject property. There is not a requirement for a certain species of tree or specific location on the property where the replacement tree must be planted. The City has a list of recommended trees to be planted (water conserving species) that is sent to each applicant as a courtesy.

The City tracks replacement trees through a postcard which is included in the information sent to applicants who receive permit approval. The postcard is required to be completed by the applicant and returned to the City within 90 days of the tree’s removal. The postcard states the species of the replacement tree, which is used by staff to track replanting. If the in-lieu fee option is chosen, the applicant must submit the fee to the City within the same 90-day period. The following table shows the in-lieu fees the City has received over the past five years:

In-lieu fees are used for City landscaping projects not anticipated by other budgets, such as the City owned lot on Evelyn and Washington Avenues, which was recently landscaped using these fees.

ISSUES AND OPTIONS:

Required Findings

As stated previously, in order to grant approval of a TRP request in accordance with §19.94.060 of the ordinance, at least one of the three findings must be made. These findings are narrowly focused in terms of the three issues they concentrate on and do not address other possible justifications/findings for removing a healthy tree. The following items are potential additions to the existing three findings that must be made to approve a TRP. This list has been gathered from staff’s interaction with property owners during the course of TRP review and based on feedback from the public at the study issue community meeting.

• Sufficient or Over-planted Landscaping – In some instances, properties were over-planted when first developed or became over-landscaped over time. This usually occurs when there is a property owner who is an active landscaper or one who has diligently tended the original landscaping on site. Consequently, as the landscaping matures many trees have either become crowded or too numerous. When the property owner requests a permit to selectively remove some of the large trees, it may not be approved if the tree is in healthy condition and does not unreasonably restrict the owner’s use of their land.

Staff has often heard the point of view that, if there is no finding to allow the selective removal of healthy trees from a sufficiently landscaped site, then the tree ordinance has become punitive for property owners who carefully maintain their trees and landscaping. In other words, if property owners are good stewards of their trees, the trees will remain healthy and, therefore, may not be approved for removal.

• Overgrown Trees – Many property owners, particularly residential property owners, plant inappropriate species of trees or may plant trees in inappropriate locations. A common example staff encounters is a well intended property owner who plants a large species tree (Redwood, Eucalyptus) next to their house or in a side yard area. Their goal is to improve the aesthetics of their property but they are not aware of proper planting practices. As the tree grows very large over time, it becomes evident that the species chosen is not suitable for the tree’s location on the site. </