Chapter 8.10
REMOVAL OF AND DAMAGE TO HERITAGE TREES

Sections:

8.10.010    Statement of findings.

8.10.020    Definitions.

8.10.030    Prohibitions and protections.

8.10.040    Permit process.

8.10.050    State tree care license.

8.10.060    Violation—Penalties and remedies.

8.10.010 Statement of findings.

The town finds and declares as follows:

A. The town is endowed and forested by oaks, bay and other trees.

B. The preservation of these trees is essential to the health, welfare and quality of life of the citizens of the town to:

1. Preserve the scenic beauty of the town and to ensure the privacy of its citizens;

2. Maintain ecological balance;

3. Prevent erosion of topsoil;

4. Protect against the hazards of floods and the risk of landslides;

5. Counteract air pollutants and oxygenate the air;

6. Absorb noise;

7. Maintain the climatic and microclimatic balance; and

8. Decrease high wind velocities. (Ord. 462 § 1(A), 1991; Ord. 444 § 1, 1989)

8.10.020 Definitions.

As used in this chapter:

A. “Heritage tree” means either:

1. A tree, located in the tree preservation area, or a native oak tree (Quercus lobata, Quercus agrifolia or Quercus douglasii) located anywhere on a lot, which has a trunk circumference of forty-eight inches or more, when measured forty-eight inches above the natural grade;

2. A tree so designated by the city council, based upon findings that the particular tree is unique and of importance to the public due to its unusual age, appearance, location or other factors;

3. The trees listed below shall not be classified as heritage trees:

Acacia baileyana—Bailey Acacia

(Mimosa)

Acacia decurrens—Green Wattle

Acacia melanoxylon—Black Acacia

Ailanthus altissima—Tree of Heaven

B. “Tree preservation area” means the area outside the building area of the lot, as defined in Section 17.60.020 of this code.

C. “Damage to a heritage tree” means any action, in the judgment of the building official or town arborist, which will cause damage to its health including, by way of example, but not limited to, excess pruning, topping, cutting, girdling, poisoning, over-watering, unauthorized relocation or transportation of a tree, or trenching, excavating, altering the grade, compaction or paving near the tree. (Ord. 533 § 1, 2002: Ord. 462 § 1(B), 1991: Ord. 444 § 2, 1989)

8.10.030 Prohibitions and protections.

A. No person shall remove a heritage tree unless a permit has first been issued in accordance with Section 8.10.040.

B. All heritage trees must be shown and designated on every plot map that may be required by the town in connection with any application for subdivision, variance, use permit, or building permit. In addition, a heritage tree protection and preservation plan may be required with each application. The heritage tree protection and preservation plan shall be prepared by a certified arborist to assess impacts to trees, recommend mitigation to reduce impacts to a less than significant level and identify construction guidelines to be followed through all phases of a construction project. Detailed standards and specifications for the implementation of a heritage tree protection and preservation plan can be found in the town’s current tree preservation guidelines, standards and specifications.

C. It is unlawful for any person to damage or harm a heritage tree by any means whatever, including, without limitation, those actions defined in Section 8.10.020(C).

D. The provisions of this chapter shall not be deemed to repeal or otherwise affect the provisions of Chapter 8.08 of this code, relating to dead or dangerous trees. (Ord. 547 § 1, 2004; Ord. 533 § 2, 2002: Ord. 522 § 1, 2001; Ord. 444 § 3, 1989)

8.10.040 Permit process.

A. The application for a heritage tree removal permit shall be filed with the building department on a prescribed form. The building department may require the applicant, at the applicant’s expense, to furnish a written report from a licensed tree expert acceptable to the building department.

B. If the tree which is the subject of the application meets the requirements as set forth in this section based upon a review of the permit application and the inspection report, then the building department may grant the permit, conditionally grant the permit specifying mitigation requirements, deny the permit, allow a portion of the proposed work in the permit application to be done, or refer the application to the planning commission. The building department may attach reasonable conditions to ensure compliance with the intent and purpose of this chapter such as, but not limited to, requiring replacement of the tree or trees removed with plantings acceptable to the building department. Denial of the application may be appealed to the planning commission. In making the determination of which action to approve, including whether or not to refer the application to the planning commission, an authorized representative of the building department shall inspect the tree and make a determination based on the following criteria:

1. The probability of failure which is a function of tree and site conditions such as, but not limited to, structural defects, presence of disease, species history, age or remaining life span, and varying weather conditions. The probability of personal injury or significant property damage as a function of proximity to existing structures and objects of value and interference with utility services;

2. The number, species, size and location of existing trees in the area and the effect of the requested removal upon shade, noise buffers, protection from wind damage, air pollution, historic value, scenic beauty, health, safety and general welfare of the area and town as a whole;

3. Good forestry practices such as, but not limited to, the number of healthy trees a given parcel of land will support.

C. If referred by staff, or a decision by staff is appealed by the applicant, the application shall be heard and considered at a public meeting of the planning commission. Each application for a heritage tree removal permit shall be accompanied by a fee in an amount as set by resolution of the city council sufficient to cover all costs of processing the permit. The application for a planning commission review shall contain the following:

1. A legal description and accurate map showing the location of the property for which the permit is sought and the location of the tree for which the permit is sought and all other heritage trees on the subject parcel;

2. The names and addresses of the applicant and record owner of the subject property, and of the record owners of each parcel contiguous to the subject property, and of each parcel across any street from the subject property any part of which is encompassed within the projected side lines of the subject parcel. The applicant shall furnish to the town a stamped plain No. 10 envelope addressed to each such owner;

3. A photograph of the subject tree or trees;

4. A statement of the reason for requested removal, the species of the subject tree, and the circumference at forty-eight inches above natural grade of the subject tree;

5. Such additional information as the building department may deem necessary.

D. The application shall be heard and considered at a public meeting of the planning commission. Notice of the meeting shall be mailed by the town at least ten days before the meeting to the owners of each property described in subsection (C)(2) of this section.

E. At the public meeting, the planning commission shall hear all evidence presented, and shall grant the heritage tree removal permit unless it finds that the removal of the subject tree would be contrary to the purpose and intent of the general plan of the town.

F. At the discretion of the planning commission, for each heritage tree permitted to be removed the permittee may be required to plant three trees of fifteen-gallon container size, or two trees of twenty-four-inch box container size, or one tree of fifteen-gallon container size and one tree of thirty-six-inch container size. Where native heritage oak trees are allowed to be removed from within the buildable area, they shall each be replaced with one or more trees of forty-eight-inch container size of native oak species at a location approved by the planning commission. The planning commission may also attach other reasonable conditions to ensure compliance with the intent and purpose of this chapter.

G. The decision of the planning commission on any application for a heritage tree removal permit may be appealed to the city council in accordance with the procedures contained in Chapter 17.06 of this code.

H. It is strongly recommended that the trees listed below not be planted in the town of Atherton:

Acacia baileyana—Bailey Acacia

Acacia decurrens—Green Wattle

Acacia melanoxylon—Black Acacia

Ailanthus altissima—Tree of Heaven

Eucalyptus globulus—Blue Gum Eucalyptus

Pinus radiata—Monterey Pine

(Ord. 533 § 3, 2002; Ord. 522 § 2, 2001; Ord. 484 § 1(A)—(C), 1994; Ord. 462 § 1(C)—(J), 1991; Ord. 444 § 4, 1989)

8.10.050 State tree care license.

Except for the property owner, no person shall perform any removal of any heritage tree for hire within the town of Atherton without a valid state tree care license as required by the state of California. (Ord. 484 § 1(E), 1994)

8.10.060 Violation—Penalties and remedies.

A. Any person causing a heritage tree to be removed or damaged in violation of this chapter shall submit a fee as determined by city council resolution to be deposited into a fund for the planting and maintenance of community trees, as a civil penalty in addition to the penalties as outlined in Chapter 1.20.

B. As part of a civil action brought by the town, a court may assess against any person who commits, allows, or maintains violation of any provision of this chapter a civil penalty in an amount not to exceed five thousand dollars per violation. Where the violation has resulted in removal of a tree, the civil penalty shall be in an amount not to exceed five thousand dollars per tree unlawfully removed, or the replacement value of each such tree, whichever amount is higher. Such amount shall be payable to the town as described in subsection A of this section. Replacement value for the purposes of this section shall be determined utilizing the most recent edition of the Guide for Plant Appraisal. A civil action may be commenced to abate, enjoin, or otherwise compel the cessation of violation of any provision in this chapter. In a civil action brought pursuant to this chapter in which the town prevails, the court may award to the town all costs of investigation and preparation for trial, the costs of trial, reasonable expenses including overhead and administrative costs incurred in prosecuting the action, and reasonable attorney fees.

C. Upon any guilty plea or judgment or conviction, in any criminal proceeding brought for the violation of this chapter, the defendant is entitled by law to probation, then the court may require the payment to the town of the costs and expenses as described above and the code provision incorporated by reference as one of the conditions of such probation.

D. The violation of any provision contained in this chapter shall be subject to the penalties or remedies as described herein and any other remedies authorized by the town of Atherton Municipal Code, including, but not limited to, the following:

1. Requiring that the violator obtain a tree removal permit for the previously conducted unlawful activity, including one or more of the following conditions as appropriate:

a. The violator shall replace each unlawfully removed tree with one or more new trees which can be accommodated on the site of the violation according to the town arborist and, in the opinion of the town arborist, will provide equivalent value in terms of cost (as determined pursuant to a certified arborist’s calculation of the value of the removed tree(s) in accordance with the latest edition of the Guide for Plant Appraisal published by the Council of Tree and Landscape Appraisers (adopted by reference)), aesthetic and environmental quality, size, height, location, appearance and other characteristics of the unlawfully removed tree; or

b. Where replacement trees cannot be accommodated on-site according to the town arborist, or cannot provide equivalent aesthetic or environmental quality of removed tree(s) on site, the violator shall either plant replacement trees off-site as designated by the town arborist or make a cash payment as described in subsection B of this section, or any combination thereof, in accordance with the following:

i. To the extent that a cash payment is required for any portion or all of the value of the removed tree, such payment shall be doubled to reflect the estimated installation costs that would be incurred if replacement trees are planted; and

ii. To the extent that the planting of off-site replacement trees is required, the retail cost of such trees, as shown by documentary evidence satisfactory to the town arborist, shall be offset against the value of the removed tree, but no credit shall be given for transportation, installation, maintenance and other costs incidental to the planting and care of the replacement trees; or

c. Where the unlawful activity did not result in tree removal, but did result in tree damage, the violator shall enhance the condition of the remaining trees or portions of trees according to good forestry practices which, in the opinion of the town arborist, will provide equivalent value in terms of damage to the tree(s), aesthetic and environmental quality, size, height, location, appearance and other characteristics of the unlawfully damaged tree; provide equivalent enhancement of the condition of trees off-site or make a cash payment to the fund described in subsection A of this section (based on the town arborist’s calculation of the equivalent value of the unlawful damage to the tree).

2. Any person who is required to plant replacement trees on-site pursuant to this section shall permanently maintain such trees in a good and healthy condition to ensure permanent establishment of any such tree(s), as determined by the town arborist. Such person shall post a maintenance bond or security deposit in a form prescribed by the building official and execute a maintenance agreement with the town, which shall be recorded in the office of the county recorder.

E.    All remedies provided in this section shall be cumulative and are not exclusive. (Ord. 565 § 1, 2006; Ord. 533 § 4, 2002: Ord. 490 § 16, 1996: Ord. 484 § 1(D) (part), 1994; Ord. 444 § 5, 1989)