Chapter 12.30 MAINTENANCE OF STREET TREES AND SIDEWALKS

“Public right-of-way” means land which by deed, conveyances, agreement, easement, dedication, usage, or process of law is reserved for and dedicated to the use of the general public for street or highway purposes.

“Public street” means the full width of a public right-of-way of any road, street, lane, or alley, and includes any park, parking strip, sidewalk and dedicated planting easement between the adjacent property and the street line.

“Street tree” means any tree the base of which is located wholly or partially within a public street or right-of-way and any tree adjacent to a public street or right-of-way approved by the city to satisfy the requirement to plant street trees under the subdivision ordinance as set forth in Section 17.25.140.

“Street tree permit” means a permit to plant, prune or remove a street tree required by this article.

“Tree” is defined by Section 18.215.030. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2100.)

12.30.020 Scope of regulations.

This article regulates the planting, pruning and removal of street trees by persons or entities other than the city of Fremont. Nothing in this article shall be construed to govern or otherwise limit the city’s authority to plant, prune or remove street trees. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2101.)

12.30.030 Street trees regulated.

(a) Street trees may only be planted, pruned, or removed as authorized by this article.

(b) It is unlawful for a person to plant, prune or remove a street tree, or to cause the planting, pruning or removal of a street tree, in a manner inconsistent with this article. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2102.)

12.30.040 Planting – Permit and standards.

(a) A person may not plant a street tree except as authorized by a street tree permit or an approved development plan.

(b) Planting of street trees must comply with the planting standards set forth in standard details adopted by the city council or as expressly authorized in writing by the city manager.

(c) Only species approved in writing by the city manager or shown on an approved development plan may be planted as street trees. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2103.)

12.30.050 Pruning permit.

(a) Except as provided in subsection (b) of this section, a street tree may only be pruned:

(1) By a certified arborist or a person working under the supervision of a certified arborist; and

(2) After obtaining a street tree permit authorizing the pruning.

(b) Any person may perform without a permit:

(1) Incidental pruning of a street tree measuring less than 15 feet in height after planting, and

(2) Pruning of low hanging branches measuring less than two inches in diameter as necessary to maintain the clearance heights over the public right-of-way required by Article II of this chapter. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2104.)

12.30.060 Pruning standards – Topping prohibited.

(a) The pruning of street trees must comply with the pruning standards prescribed by the current version of Tree Pruning Guidelines, published by the International Society of Arboriculture, or such other standards or methods as expressly authorized in writing by the city manager.

(b) Notwithstanding subsection (a) of this section, topping of street trees is prohibited unless specifically authorized in writing by the city manager based on clear evidence of extraordinary circumstances justifying topping in the particular situation. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2105.)

12.30.070 Removal – Replacement.

(a) A person may not remove a street tree except:

(1) When authorized by a street tree permit; or

(2) By an approved development plan; or

(3) When authorized by the city manager in an emergency as provided in Section 12.30.090.

(b) A person removing a street tree must timely grind the stump to 24 inches below grade or remove it, and repair any damage to right-of-way improvements caused by the grinding or removal. A person must obtain an encroachment permit under Chapter 12.05 before making any repairs to right-of-way improvements.

(c) The adjoining property owner must timely replace a street tree removed under the authority of this section. The replacement obligation shall be governed by the rules applicable to mitigation for authorized removal of private protected trees under Section 18.215.080. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2106.)

12.30.080 Criteria for removal permit.

(a) This section applies to the nonemergency removal of street trees except those designated as landmark trees by the city council. The nonemergency removal of a street tree that the city council has designated a landmark tree is governed by the tree preservation ordinance as codified in Chapter 18.215.

(b) The city manager may issue a nonemergency street tree permit to remove a street tree when one or more of the following criteria is clearly met:

(1) The tree poses a substantial hazard to people or property and cannot otherwise be feasibly restored to a safe condition.

(2) The tree is dead, dying or has a short life expectancy.

(3) The tree is seriously diseased and cannot be feasibly restored.

(4) The tree is part of a group that is overcrowded and removal would contribute to the health and vigor of nearby trees whose preservation is more desirable.

(5) The tree has extensively damaged a utility (sewer, water main, power lines, etc.) or is significantly interfering with overhead utilities and the problem cannot be remedied by other reasonable means including appropriate pruning.

(6) The tree has extensively damaged concrete after the tree has been deep-watered and root trimmed.

(7) The tree has been damaged to an extent that it cannot be feasibly restored.

(d) As used in this section, “feasibly restored” means the use of reasonable preservation or preventive practices not requiring damage to or removal of the tree. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2107.)

12.30.090 Criteria for emergency pruning or removal.

(a) This section applies to the emergency pruning or removal of all street trees including landmark trees.

(b) The city manager may authorize pruning or removal of a street tree when immediate pruning or removal is necessary to protect against an imminent threat of substantial injury to persons or damage to property.

(c) A street tree may not be removed under subsection (b) of this section if the imminent threat can be reasonably alleviated by pruning or other practical means, and must not be pruned more than is necessary to eliminate the imminent threat.

(d) In lieu of submitting the permit application required by Section 12.30.120, a person may request permission for emergency pruning or removal by contacting the maintenance division and obtaining permission from urban forestry staff.

(e) Within two business days of the completion of emergency work under subsection (b) of this section, the adjoining property owner must provide in writing to the maintenance department a full description of the work completed and the exact location where the work was performed.

(f) Removal or pruning exceeding the scope of work allowed by subsection (b) of this section, and pruning sought to be justified by this section when an imminent threat of substantial injury to persons or damage to property did not exist, as determined by the city manager, shall constitute damage to a street tree under this article. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2108.)

12.30.100 Street tree permits.

(a) The city manager shall administer all permits required by this article and shall prescribe all forms necessary for that purpose.

(b) The city manager shall only issue a permit to plant, prune or remove a street tree as authorized by this section and in accordance with this article. A permit issued in nonconformance with this article is void.

(c) The city manager may only issue a permit to plant, prune or remove a street tree to a person who the city manager reasonably believes is authorized under the contractors’ state license law to perform the work. This subsection recognizes that the state of California limits who may plant, prune or remove a tree.

(d) The city manager shall collect all applicable street tree permit fees established by the city council before issuing a nonemergency street tree permit.

(e) The city manager is not required to investigate the license status or qualifications of the person applying for the permit or performing the work under the permit. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2109.)

12.30.110 Fees.

The city manager shall propose for adoption by the city council fees and periodic adjustments to fees for the administration of this chapter. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2110.)

12.30.120 Application for street tree permit.

(a) A person desiring to obtain a permit to plant, prune or remove a street tree must submit a complete application in compliance with Section 12.30.130 to the city manager and pay applicable fees as established by the city council.

(b) A person doing business as a public utility, subject to the jurisdiction of the State Public Utilities Commission, and any public agency providing utility service may apply as set forth in subsection (a) of this section for a permit valid for six months from the date of issuance permitting such person to trim, brace, remove, or perform other such acts with respect to trees or shrubs growing adjacent to the public streets of the city or which grow upon private property to the extent that they encroach upon such public streets, as may be necessary to comply with the safety regulations of such commission and as may be necessary to maintain the safe operations of its business. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2111.)

12.30.130 Application requirements.

(a) A street tree permit application must be made on a form or in a manner approved by the city manager.

(b) The application must provide:

(1) The address of the adjacent property;

(2) The name of the adjoining property owner(s), and the adjoining property owner’s address and contact information;

(3) The name and address of the person performing the work;

(4) The state contractor license number of the person performing or supervising the work, or if the person claims to be exempt from or not a contractor under the state contractor licensing law, the basis for the claim;

(5) If the work involves pruning, proof that the person is a certified arborist in good standing or will be performing the work under the supervision of a certified arborist in good standing; and

(6) Identification of each street tree to be planted, pruned or removed by species and location.

(c) The application must be signed under penalty of perjury as to the truth of the information provided by the adjoining property owner and the person performing the work. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2112.)

12.30.140 Attachments to street trees.

No person, without first having obtained express written permission from the city manager, shall attach to or maintain on a street tree or on a guard or stake attached to a street tree any wire, rope, sign, or device whatsoever. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2113.)

12.30.150 Liability for actions.

Nothing contained herein shall be deemed to impose any liability upon the city, its officers, or employees, nor to relieve the owner of any private property from the duty to keep any tree or shrub upon his or her property or under his or her control from constituting a public nuisance. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2114.)

12.30.160 Interference with city operations.

No person shall interfere with city employees while engaged in the planting, mulching, pruning, trimming, spraying, treating, or removing of any tree or shrub in any public street or right-of-way of the city or in the removing of any stones, cement, or other substance about the trunk of any tree or shrub on any public street or right-of-way. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2115.)

12.30.170 Damaging street trees prohibited.

(a) It is unlawful for any person to damage a street tree.

(b) Damaging a street tree includes committing or causing, or permitting another to commit or cause, the following conduct:

(1) Attaching or maintaining any rope, wire, or device to the tree or to the guard or stake intended for the protection of the tree without the city manager’s written permission.

(2) Placing or maintaining concrete, asphalt or brick paving in or otherwise filling up the ground area within four feet of the tree so as to shut off air, light or water from the roots.

(3) Piling or maintaining building material or other material about the tree in any manner that will in any way injure the tree.

(4) Constructing or maintaining any raised planter around the trunk of the tree.

(5) Releasing any substance injurious to trees or soil on any part of:

(A) The tree; or

(B) Soil within the drip line of the tree.

(6) Pruning the tree in a manner substantially inconsistent with the pruning standards identified in Section 12.30.060.

(7) Carving, girdling or injuring the bark of a street tree.

(8) Undertaking an act without authorization under this article or failing to perform an obligation under this chapter that causes:

(A) Substantial decline in the health of the tree; or

(B) Substantial shortening of the tree’s life expectancy; or

(9) Removing a street tree without authorization under this article. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2116.)

12.30.180 Remedies for violation.

(a) Violation of this chapter may be remedied by any means available to remedy a violation of this code.

(b) The remedies for violation of this chapter are nonexclusive and cumulative.

(c) If a person removes a street tree without authorization, the person and the adjoining property owner shall be jointly and severally liable for restitution. The restitution required by this subsection shall be determined in accordance with the standards for mitigation in Section 18.215.090 for the unauthorized removal of a private protected tree following the process in Section 18.215.190. The city manager may determine the appropriate staff to perform the obligations of the landscape architect under Sections 18.215.090 and 18.215.190.

(d) Notwithstanding Section 1.20.080, the administrative penalty amount that may be imposed for violation of Section 12.30.170 (damaging street trees) shall be as set forth in this subsection.

(1) A person damaging a street tree is subject to a fine in the amount of:

(A) Two hundred fifty dollars for the first offense;

(B) Seven hundred fifty dollars for the second offense; and

(2) A person who damages a street tree either knowingly or with intent to injure a tree is subject to a fine in the amount of $1,000 for each offense. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2117.)

12.30.190 Appeals.

(a) A person wishing to appeal the denial of a permit to remove a street tree or the imposition of restitution for the unauthorized removal of a street tree must do so to the city council as provided in Chapter 1.25.

(b) A person wishing to contest an administrative penalty or an abatement order must do so in accordance with the provisions that govern the procedure for imposing the fine or abatement order.

(c) For all other administrative actions under this chapter not covered by subsections (a) and (b) of this section, a person wishing to appeal the action of a designee of the city manager must file a written appeal to the city manager within 10 days of the action. The city manager shall act upon the appeal promptly. Decisions of the city manager, whether on appeal or made in the first instance, shall be final. (Ord. 11-2010 § 5, 5-25-10. 1990 Code § 6-2118.)

Article II. Duty of Property Owners to Maintain Street Trees and Sidewalks

12.30.200 Maintenance of landscaping along or in street right-of-way.

(a) The owner of a lot with frontage along a public street must maintain the street trees and other landscaping growing along the frontage or in the street right-of-way adjacent to the lot, including in any park or parking strip between the property line and the street line.

(b) The owner’s obligations under subsection (a) of this section include at a minimum all of the following:

(1) Maintaining the street trees and other landscaping in a good and safe condition as will not interfere with the public convenience or safety in the use of the public street and sidewalk, including:

(A) Ensuring sufficient passage of light from any public street light to the street;

(B) Ensuring a clear height of 10 feet above the surface of the street or sidewalk unobstructed by branches;

(C) Ensuring street signs, parking restriction signs, bus stop signs, and other directional and regulatory signs are not obstructed; and

(D) Removing dead, decayed, or broken limbs or branches that overhang the public right-of-way.

(2) Deep root watering, root pruning, installing root barriers, fertilizing, and pest control.

(3) Clearance, structural, and safety pruning.

(4) Removal of fallen leaves, branches and other debris.

(5) Replacing any removed or otherwise missing street tree as may be required by Article I of this chapter.

(6) Replacing any removed or otherwise missing landscaping if the landscaping was required to be planted by this code or an approved development plan.

(c) An owner owes a duty to members of the public to maintain street trees and other landscaping along the street frontage or in the street right-of-way adjacent to the owner’s property in a safe and nondangerous condition.

(d) If an owner fails to maintain street trees and other landscaping in a safe and nondangerous condition as required by this section, and a person suffers damage or injury to person or property, the owner shall be liable to the person for the resulting damages and injuries.

(e) The city of Fremont shall have a cause of action for indemnity against a property owner for any damages it may be required to pay as satisfaction of any judgment or settlement of any claim from injury to persons or property as a legal result of the owner’s failure to maintain a street tree in accordance with this section. (Ord. 11-2010 § 6, 5-25-10. 1990 Code § 6-2201.)

12.30.210 Maintenance of sidewalks.

(a) As used in this section, “sidewalk area” includes the sidewalk, any park or parking strip maintained in the area between the property line and the street line, and the curbing, gutter, driveway, bulkheads, retaining walls or other works for the protection of any sidewalk or of any park or parking strip.

(b) The owner of a lot fronting on or adjacent to a public street must maintain any sidewalk area in good repair and condition. This duty includes but is not limited to maintenance and repair of surfaces including performance of grinding, removal and replacement of sidewalks, and repair and maintenance of curb and gutters, so that the sidewalk area will remain in a condition that is not dangerous to property or to persons using the sidewalk area in a reasonable manner and will be in a condition which will not interfere with the public convenience in the use of the sidewalk area.

(c) An owner required by this section to maintain a sidewalk area shall owe a duty to members of the public to keep and maintain the sidewalk area in a safe and nondangerous condition.

(d) If, as a result an owner’s failure to maintain a sidewalk area in a safe and nondangerous condition, any person suffers injury or damage to person or property, the owner shall be liable to the person for the resulting damages or injury.

(e) The city of Fremont shall have a cause of action for indemnity against a property owner for any damages it may be required to pay as satisfaction of any judgment or settlement of any claim that results from injury to persons or property as a legal result of the owner’s failure to maintain a sidewalk area in accordance with this section.

(f) Failure of the owner to maintain a sidewalk area as set forth in this section shall constitute a public nuisance. (Ord. 11-2010 § 6, 5-25-10. 1990 Code § 6-2202.)

12.30.220 Duty of property owners to notify city of damages occurring from trees.

Every property owner, tenant, lessee, or other possessor of real property shall notify the office of the city manager, or designated department, when any tree or shrub in a public street or right-of-way adjacent to or fronting upon her or his property is injuring or damaging any public right-of-way. (Ord. 11-2010 § 6, 5-25-10. 1990 Code § 6-2203.)

12.30.230 No mandatory duty of city created.

Nothing in this chapter is intended to create a mandatory duty on the part of the city manager or the city to protect persons or property from a violation of the provisions of this chapter. (Ord. 11-2010 § 6, 5-25-10. 1990 Code § 6-2204.)