CHAPTER 10.
URBAN FORESTRY ORDINANCE

Sections:

7-10.01    Title

7-10.02    Purpose

7-10.03    Definitions

7-10.04    Maintenance of Street Trees

7-10.05    Planting and Removal of Street Trees

7-10.06    Protection of Trees and Landscape Material

7-10.07    Nuisance Trees; Abatement

7-10.08    Materials Deleterious to Plant Growth Prohibited

7-10.09    Paving Prohibited on Parkway

7-10.10    Exemptions

7-10.11    Urban Forestry Account

7-10.12    Penalties for Violation of Ordinance

7-10.01. Title.

The ordinance codified in this chapter shall be known as the Emeryville Urban Forestry Ordinance.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.02. Purpose.

The Emeryville Urban Forestry Ordinance is enacted to further the following public purposes:

(a)    To realize the optimum benefits of trees on the City’s streets and public places, including favorable modification of microclimates, mitigation of air, water and noise pollution, reduction of soil erosion and runoff, enhancement of the visual environment, and promotion of community pride;

(b)    To provide habitat for wildlife and green space;

(c)    To integrate street planting and maintenance with other urban elements and amenities, including but not limited to utilities, vehicular and pedestrian traffic;

(d)    To promote efficient, cost-effective management of the City’s urban forest by coordinating public and private efforts within a comprehensive and professional management system;

(e)    To promote the attractiveness of the City to residents and visitors and enhance property values and the quality of life within the City;

(f)    To reduce the public hazard, nuisance, and expense occasioned by improper tree selection, planting, and maintenance;

(g)    To create and maintain a unified urban-forest resource, enhancing the City’s overall character and sense of place; and

(h)    To provide a mechanism by which a “street tree” may be removed, as well as the imposition of penalties for any unauthorized removal or violations of the Urban Forestry Ordinance.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.03. Definitions.

Unless the context otherwise clearly indicates, the words and phrases used in this chapter shall be defined as follows:

(a)    “Cumulative diameter” shall refer to the sum diameter of the trunks of multi-stemmed trees, or to the sum diameter of the trunks of several trees, when measured at four and one-half feet (4-1/2') feet above natural grade.

(b)    “Department” shall mean the Department of Public Works or the Department’s designee.

(c)    “Director” shall mean the Director of the Department of Public Works or the Director’s designee.

(d)    “Drip line” shall mean the outermost limit of the canopy of a tree as determined by the perimeter of its branches which, extended perpendicularly to the ground, encloses the tree.

(e)    “Injure” or “injury” shall mean any act which harms or damages a tree, including but not limited to impact, cutting, carving, transplanting, or knocking over, and includes but is not limited to the following: injurious attachment of any rope, wire, nail, advertising poster, or other contrivance to any street tree; intentionally or negligently allowing any gaseous liquid or solid substance that is harmful to a tree to come into contact with a tree; setting fire or intentionally or negligently permitting any fire to burn when such fire or the heat therefrom will injure any part of any tree; pruning which in and of itself will kill or cause a tree to decline; or severing of all or part of a tree.

(f)    “Landscape material” shall mean any tree, shrub, groundcover or other plant.

(g)    “Maintenance” shall mean those actions necessary to promote the life, growth, health, or beauty of a tree. Maintenance includes both routine and major activities. “Routine maintenance” shall include adequate watering to ensure the tree’s growth and sustainability; weed control; removal of tree-well trash; staking; fertilizing; routine adjustment and timely removal of stakes, ties, tree guards, and tree grates; bracing; and sidewalk repairs related to the tree’s growth or root system. “Major maintenance” shall include structural pruning as necessary to maintain public safety and to sustain the health, safety, and natural growth habit of the tree; pest- and disease-management procedures as needed and in a manner consistent with public health and ecological diversity; replacement of dead or damaged trees.

(h)    “Nuisance tree” shall mean any tree that poses a hazard to person or property. A tree may be deemed a nuisance if it or any part of it: (1) appears dead, dangerous, or likely to fall; (2) obstructs or damages a street or sidewalk; (3) harbors a serious disease or infestation threatening the health of other trees; (4) interferes with vehicular or pedestrian traffic; (5) obstructs official street cleaning activities; or (6) poses any other significant hazard or potential hazard, as determined by the Department.

(i)    “Parking strip” or “parkway” shall mean the area between the property line and roadway, except sidewalk and curb, if any.

(j)    “Replacement value fee” shall mean a fee equal to the value of the tree as determined by an appraisal prepared by a certified arborist by using the most current edition of the “Guide for Plant Appraisal” published by the Council of Tree and Landscape Appraisers. All trees four inches (4") and greater in diameter at four and one-half feet (4-1/2') above natural grade level shall be evaluated using the trunk formula method of appraisal. All other trees shall be evaluated using the replacement cost method of appraisal.

(k)    “Street tree” shall mean any tree growing within the public right-of-way, including unimproved public streets and sidewalks, and any tree growing on land under the jurisdiction of the City of Emeryville.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.04 Maintenance of Street Trees.

(a)    Responsibilities of Property Owners. It shall be the duty of all public agencies and property owners whose property is not zoned medium density residential (R-M) and whose lots or portions of lots abut, front or are adjacent to any street tree to maintain such street tree. This duty shall include both routine and major maintenance of the street tree. This duty shall be extended to any property owner whose property is zoned medium density residential (R-M) where the conditions of development approval require maintenance.

(b)    Responsibilities of the Department. The Department shall maintain all street trees and landscapes on properties zoned medium density residential (R-M) and those landscapes that are not the responsibility of any other entity under subsection (a) of this section. In addition, the Department may, at the Department’s discretion, determine to undertake the regular routine and/or major maintenance of certain street trees or corridors of street trees to promote consistency in the maintenance of trees or when in the public interest.

(c)    Liability. Nothing in this chapter shall be deemed to impose any liability upon the City of Emeryville or upon any of its officers or employees or agents, or to relieve the owner and occupant of any private property from the duty to keep trees upon such property or under his or her control in a safe condition.

(d)    Department Street Tree Inventory and Documentation. The Department shall use its best efforts to maintain an inventory of all trees under its jurisdiction; such information shall be made available to the public upon request.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.05 Planting and Removal of Street Trees.

(a)    Encroachment Permit Required – Planting. It shall be unlawful for any person to plant a street tree without a valid encroachment permit for such work issued by the Department pursuant to Chapter 2 of this title.

(b)    Encroachment Permit Required – Removal. It shall be unlawful for any person to remove any street tree without a valid tree removal permit for such work issued in accordance with this chapter and a valid encroachment permit for such work issued by the Department pursuant to Chapter 2 of this title.

(c)    Planting. An abutting property owner who desires a permit to plant a street tree shall apply to the Department as part of the encroachment permit process. The details of the planting, such as the species of street tree, soil testing, soil amending, staking, location and other details shall be approved by the Department. If approved, a permit to plant the specified species of tree(s) shall be issued to the applicant. The Department may elect to plant the street tree or permit the applicant to do so and condition any permits on the abutting property owner’s agreement to water or otherwise maintain the street tree or upon such other conditions as may be appropriate. In order to encourage the planting of street trees, the Department may, in its discretion, waive the permit fee for the planting of a street tree.

(d)    Tree Removal Permit. An abutting property owner who desires to remove a street tree shall apply to the Department for a tree removal permit. Such application must be accompanied by payment of the encroachment permit fee in accordance with the Master Fee Schedule adopted by the City.

(e)    Removal Application. An applicant requesting a tree removal permit to remove a street tree shall be required to submit a plan showing (1) the location, species, trunk diameter at four and one-half feet (4-1/2') above natural grade, canopy size, and drip line (as defined in Section 7-10.03) of all street trees to be removed, (2) a red “X” over each street tree to be removed, (3) an appraisal of the replacement value fee (as defined in Section 7-10.03) of all street trees identified in the plan to be removed, (4) a tree report prepared by a certified arborist providing accurate information and opinion regarding the location, species, trunk diameter measured at four and one half feet (4-1/2') above natural grade, canopy size, and condition of all street trees identified in the plan to be removed, and (5) such other information or details as the Department may require. Applicants for a street tree removal permit sought as a component of a development project that requires Planning Commission review or approval in accordance with Article 82 of Chapter 4 of Title 9 shall also comply with the submittal requirements set forth in Section 9-4.82.3. Further, applicants for a street tree removal permit shall also comply with the submittal requirements for an encroachment permit as set forth in Section 7-2.04.

(f)    Decision to Grant Permit. The Department shall present the application to remove a street tree to the Planning Commission at a noticed public hearing. The Planning Commission may grant or deny the tree removal permit for removal of a street tree as determined in its sole discretion. If the Planning Commission grants a permit for tree removal, the Planning Commission shall require the planting of replacement trees of equal or cumulative diameter to the trees approved for removal and payment of the replacement value fee of the street tree(s) to be removed. When replacement of a tree of equal diameter is not feasible, for reasons related to site-specific conditions, replacement at the largest practicable diameter, as determined by the Planning Commission, shall be required. When the replacement tree cannot match the diameter of the tree to be removed, due to site-specific conditions, the Planning Commission shall require replacement planting of several trees of equal cumulative diameter to the tree being removed. In cases where the need for street tree removal is without fault of the property owner and the property owner is not otherwise responsible for maintenance of the street tree, or for other good cause shown, the Planning Commission may waive the requirement to plant a replacement tree of equal or cumulative value or payment of a replacement value fee.

(g)    Notice Required. Upon receipt of an application for a tree removal permit for street tree removal, the Department shall post notice of the public hearing on such application on the affected street tree(s), in a manner not injurious to the tree(s); at the locations designated in Section 2-8.01 and provide Type B and D notice as set forth in Section 9-4.89.3.

(h)    Appeals.

(1)    Any person aggrieved by the decision of the Planning Commission may appeal to the City Council within fifteen (15) days after final action by the Planning Commission. The decision of the City Council shall be final.

(2)    All appeals under this section shall be governed by the procedures set forth in Article 88 of Chapter 4 of Title 9.

(i)    Compliance with Landscaping Provisions of Zoning Ordinance. In all cases, tree planting and landscaping undertaken pursuant to this chapter shall comply with the requirements of Article 54 of Chapter 4 of Title 9, except when, in the discretion of the Public Works Department or the Planning Department, site conditions are such that modification is warranted.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2, Ord. 06-020, eff. Dec. 21, 2006; Sec. 2, Ord. 08-007, eff. Oct. 2, 2008; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.06 Protection of Trees and Landscape Material.

(a)    Injury to or Destruction of Trees Prohibited. It shall be unlawful for any person to intentionally, maliciously or through negligence injure or destroy a street tree.

(b)    Injury to or Destruction of Landscape Materials Prohibited. It shall be unlawful for any person to intentionally, maliciously or through negligence injure or destroy any landscape material in any street median, center strip, or other landscaped portion of a public right-of-way under the City’s jurisdiction, except as authorized by the Department.

(c)    Construction Work – Protection of Trees Required. It shall be unlawful for any person to engage in any construction work on private or public property without first taking steps to protect all street trees from damage, including damage caused by soil compaction or contamination.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.07 Nuisance Trees; Abatement.

(a)    Notice to Property Owner(s). Upon a finding by the Department that any tree on private property or a street tree for which a property owner is responsible is a “nuisance tree” as defined herein, the Department shall send notice to the property owner(s) which describes the condition creating the nuisance, the actions required to be taken to abate the nuisance, and the date by which compliance must be completed. Required action may include replacement or removal of the tree. In cases of extreme danger, as determined by the Department, the Department may require immediate compliance.

(b)    Department of Public Works to Abate Nuisance If Owner Fails to Do So. If the responsible property owner does not undertake in a timely manner the abatement action, as required by said notice, the Department may perform necessary work to abate the nuisance. The cost of such abatement, including labor, equipment, materials, inspection services, and administrative costs, shall be an obligation owing by the responsible property owner(s) to the City.

(c)    Method of Enforcement and Collection of Lien. The City Manager or his or her designee shall calculate all costs of abatement. The property owner shall be billed by the City Manager or his or her designee for the total costs and payment shall be due and payable within fifteen (15) days of the billing date. If the property owner fails timely to remit payment, the costs for abating such nuisance shall constitute a special assessment against the property to which it relates, and upon recordation in the office of the County Recorder of a notice of lien, as so made and confirmed, shall constitute a lien on said property for the amount of such assessment.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.08 Materials Deleterious to Plant Growth Prohibited.

Except where approved by the Department, it shall be unlawful for any person to place or allow to be placed in or upon any parking strip, parking area or public plat any salt, oil, herbicide, or any other material deleterious to the growth of plants, or in such close proximity to such public squares, parking areas, or public plats, that such deleterious material will permeate the soil thereof.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.09 Paving Prohibited on Parkway.

It is unlawful for any person to pave any parking strip or parkway in any manner or with any material whatsoever without first securing the written permission of the Department. Such permission shall be given in accordance with rules and regulations adopted by the Department.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.10 Exemptions.

The City of Emeryville is not subject to the requirements of this chapter.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.11 Urban Forestry Account.

All replacement value fees and penalties collected under this chapter shall be deposited in an Urban Forestry Account for use by the Department in tree planting and landscape maintenance.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)

7-10.12 Penalties for Violation of Ordinance.

It shall be unlawful for any person to violate any provisions or to fail to comply with any requirement of this chapter.

(a)    Criminal Penalties. Any person violating any provisions of this chapter shall be punishable as set forth in Chapter 2 of Title 1.

(b)    Civil Penalties. Any person, including but not limited to the property owner, the person performing the work, and/or any other responsible person who violates any provision of this chapter or any condition established as part of any permit issued hereunder, may be required to replace any removed or damaged street tree or landscaping and shall become liable to the City for a civil penalty three (3) times the replacement value fee of the street tree or landscaping plus the City’s incurred appraisal costs, if any. The replacement value fee shall be determined by a City-selected certified arborist qualified to perform plant and tree appraisals, if the replacement value fee has not already been determined.

(c)    Cumulative. The remedies set forth in this section are not exclusive, but cumulative, and may be used in addition to those set forth elsewhere in this Municipal Code or by law.

(d)    The imposition of any fine or civil penalty for violation of this chapter shall be determined by the City Manager or his designee and may be appealed to the City Council in accordance with the appeal procedures set forth in Chapter 4 of Title 1.

(e)    A decision of the City Manager not to impose a fine or civil penalty for an alleged violation of this chapter shall be presented to the City Council at its next regularly scheduled meeting, and if in the opinion of the City Council good cause appears for imposition of a fine or civil penalty, the City Council shall set a time for the hearing and shall cause no less than ten (10) calendar days’ notice thereof to be given to the alleged violator(s) and such other persons who may have an interest in the matter. The provisions of Sections 1-4.09 through 1-4.11 shall govern the hearing.

(Sec. 2 (part), Ord. 03-015, eff. Nov. 20, 2003; Sec. 2 (part), Ord. 10-003, eff. May 6, 2010)