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Home My WebLink About3/27/2023 Item 6a, Hanlon jhanlon < To:Advisory Bodies Subject:Tree Committee ITEM 6.a - 150 CHORRO TREE REMOVAL MITIGATION This message is from an External Source. Use caution when deciding to open attachments, click links, or respond. Dear Committee members, Thank you for agendizing these items based on my request at the last meeting. Please consider the following comments regarding Agenda Item 6a. AGENDA ITEM 2 – Previously Established Mitigation Measures This item relates to the previously established mitigation measures for the improper prunings (two) of the walnut tree. It should be clearly understood that the mitigation measures have already been established by the City Public Works Department, as well as the Committee, for the improper pruning of the walnut tree, not for its removal (which incredibly is claimed to have been a verbal approval to remove a 100-foot tall, 36-inch skyline walnut tree in a residential neighborhood). The improper pruning occurred on two occasions and is well documented. It is irrelevant that live oak trees may have been planted around that time as stated in the staff report. These plantings were not done as mitigation for the improper pruning, and these trees will never re-establish the skyline canopy that was lost by the improper pruning. As the former arborist established on record (video provided with 2/27/23 meeting correspondence), “a specimen tree (greater than a 24-inch box) would be required to mitigate the loss of such a large tree that was important to the community.” Sadly, even this mitigation will take decades to achieve the same level of canopy as the tree that was improperly pruned, not to mention the numerous other trees that were removed illegally without a permit, for which I might point out, mitigation has not been sought despite the clear documentation provided. The Agenda Report for this month’s meeting acknowledges that there is no record that compensatory plantings have occurred. Please reconfirm the requirement for a greater-than 24-inch box tree in the backyard to mitigate the illegal prunings of the walnut, which has already been established at multiple public meetings. AGENDA ITEM 3 – Improper Pruning and Removal of Citrus Without a Permit: This item relates to the documented improper pruning and removal of a citrus tree without a required permit. With regard to statements in the Agenda Report, it is irrelevant that the citrus tree in question may have been poorly located within the 25-foot sight triangle (it was approximately 24 feet, I measured it), and was not an approved street tree. A violation occurred by improperly pruning more than 30% of the canopy, and a violation occurred when the tree was removed without a permit. As the Public Works Department and the Committee certainly understand, the tree did not meet the criteria for removal without a permit: MC 12.24.090 Permit Not Required. Removing a tree in R-1 and R-2 zones does not require a permit if all of the following conditions exist: 1 1. The tree is a designated native species and the trunk is less than ten inches in diameter as measured by diameter standard height (DSH, four feet, six inches per International Society of Arboriculture (ISA) standards) (see Section 12.24.030, Definitions; native trees), or when the tree is nonnative and the trunk is less than twenty inches DSH; and 2. The tree is not located within a creek setback area (see Section 17.70.030); and 3. The tree is not a designated street tree, and is not located within ten feet of the back of the sidewalk; and Since the tree was located within ten feet of back of sidewalk, a permit is required. This is one of the most basic requirements of determining when a permit is required. Mitigation must be performed to compensate for the improper pruning (beyond 30% of canopy), and for the removal without a permit, irrespective of its location within the sight triangle, and irrespective of the species. The code makes no distinction regarding a tree that “should not have been planted.” SUMMARY There should be no question that both the improper pruning of the walnut, and the improper pruning and removal of the citrus tree without a permit are violations. Mitigation for the walnut pruning violation has already been established at numerous public meetings, but notably, has not yet been enforced after four years. It is baffling to me that it appears that a SECOND (or is it a third?) motion needs to be passed by the Committee to complete this task. How many findings are required to actually get enforced? The code is also very clear on the requirements for enforcement: 12.24.170 Enforcement. A. Any person deemed responsible for damaging a tree, failing to plant trees required as a condition of a tree removal or other permit, or removing a tree without a permit as described in this chapter shall be liable for civil penalties to the city. 1. The civil penalties shall be the value of the tree times two, plus all staff costs related to the illegal tree removal or tree damage. The city arborist will compute the value of the tree using methods established by the International Society of Arboriculture. 2. The property owner shall also be held responsible for damaging or removing a tree on the owner ’s property without a permit as described in this chapter and be liable for additional civil penalties to the city as described in subsection (A)(1) of this section. 3. If the tree removal or damaged tree is related to any development or subdivision then the civil penalties shall be the value of the tree times four, plus all related staff costs. 4. In addition to civil penalties the property owner will be required to plant up to three trees under the direction of the city arborist. The size of the tree shall be determined by the city arborist and may be up to a forty-eight-inch box tree. 5. For damaged trees, in addition to civil penalties, the property owner will be required to obtain the services of an ISA certified arborist to determine the future viability of the tree and, if salvageable, create a maintenance plan to restore the tree. 6. The city council may adopt, by resolution, alternate civil damage amounts to be assessed against any person deemed responsible for damaging, harming or removing a tree without a permit. (Ord. 1589 § 2, 2013: Ord. 1544 § 1 (part), 2010) 2 Please note the language: “civil penalties shall be”, “will be required”, etc., not “might be”, or “could be.” The language is prescriptive, and does not provide provisions for the Arborist, the Committee, or any other person or agency to revise enforcement measures based on their personal opinion, their interpretation, or any other subjective belief. There should be no subjective caveats such as “well, he planted some other trees around the same time,” as noted in the Staff Report. The Public Works Department has an obligation to follow the codified enforcement requirements. Violations occurred, and the required enforcement measures are established in the municipal code. Please enforce them. If the Committee wishes for an alternate finding for the required civil penalties, then the recommendation should be for it to be forwarded to City Council for a determination, per the municipal code. I have spent countless hours documenting and reporting these violations and I can only imagine staff has also incurred expense. It should not be the public ’s burden to finance staff ’s time to address these violations when a mechanism exists for reimbursement. In fact, this is exactly why MC 12.24.170 exists – so that residents don’t unfairly finance the costs incurred due to violators. We have already lost the character of our neighborhood, and now we must pay for staff ’s time to enable the violator by refusing to enforce the code? It is bad enough that residents have lost so much of the urban forest in our neighborhood due to these illegal activities, but to be denied the right to begin to restore the canopy through the established procedures would be incredibly unjust. To forgo requiring these mitigation measures, the City and the Tree Committee would at this point need to knowingly and intentionally disregard the Municipal Code and the established process for mitigation. The duty of the Public Works Department and the Tree Committee is to serve the public using the rules that exist, not to go out of your way to invent exceptions that ultimately benefit the violator and harm the general public. There is no provision for waiving the required mitigation plantings, or civil penalties for these violations. Please make the following determinations, as prescribed by the Municipal Code: 1. Reconfirm the requirement for a greater-than 24 inch box tree in the backyard to mitigate the illegal prunings of the walnut, as already established by the City and Tree Committee at multiple public meetings. 2. Require compensatory plantings for the illegal pruning and removal of the citrus without a permit, as required by the Municipal Code. These compensatory plantings could be elsewhere in the neighborhood at the discretion of the Arborist. 3. Pursue civil penalties equal to the value of the trees times two, plus all staff costs related to the illegal tree removal (citrus) or tree damage (citrus and walnut), as required by the Municipal Code. If the Committee wishes to seek alternate civil damages (e.g., more, less, or none) then the issue should be brought to City Council for a determination (Ord. 1589 § 2, 2013: Ord. 1544 § 1 (part), 2010). Thank you. 3