CHAPTER 37
PRESERVATION OF TREES AND SHRUBS

§ 37-1    Purpose and Goals of the Ordinance

§ 37-2    Definitions

§ 37-2.5    Protection of trees during construction

§ 37-3    Cutting, pruning, damaging, or removal of trees from public areas; permit required; view trimming

§ 37-4    City removal, cutting, pruning in public areas

§ 37-5    Emergency removal, trimming, pruning by utilities

§ 37-6    Non-emergency removal, cutting, pruning by utilities

§ 37-7    Planting within improved City right-of-way; permission required

§ 37-8    Removal or damaging trees on private property; permit required

§ 37-9    Exemptions

§ 37-10    Processing of permits; standards for permits

§ 37-11    Conditions of removal / Mitigation measures

§ 37-12    Local Landmark Trees

§ 37-13    Referrals and Appeals

§ 37-14    Non-liability of City of Monterey

§ 37-15    Civil penalty

Sec. 37-1 Purpose and Goals of the Ordinance. (Ord 3318, 4/03)

Monterey’s image is that of a small-scale residential community beside the bay, framed by a forested hill backdrop and drawing its charm from a rich historical background, certain commercial enterprises, and natural scenic beauty. Trees within the City significantly contribute to this image. The Preservation of Trees and Shrubs Ordinance is intended to assure preservation of trees and replacement of trees when removal is unavoidable.

Sec. 37-2 Definitions.

(A)    “Certified Arborist” and “Certified Consulting Arborist” shall mean an individual who has demonstrated knowledge and competency through obtainment of the current International Society of Arboriculture arborist certification, or who is a member of the American Society of Consulting Arborists.

(B)    “City Forester” and “Urban Forester” shall mean the Monterey City Forester or his or her authorized designee.

(C)    “Cutting” shall mean the detaching or separating from a protected tree any limb, branch, or root. Cutting shall include pruning and trimming.

(D)    “Irreparable Damage” shall mean any action undertaken foreseeably leading to the death or permanent injury of the tree, or which places the tree in a hazardous condition or in an irreversible state of decline. This includes, but is not limited to, cutting, topping, girdling, poisoning, vandalizing, trenching or excavating within the dripline, altering the grade, paving in excess of fifty (50) percent of the dripline, excessive watering of oak trees, and excessive pruning.

(E)    “Developed parcel” shall mean any individual lot that is occupied by a principal building.

(F)    “Dripline” shall mean the outermost edge of the tree’s canopy. When depicted on a map, the dripline will appear as an irregular shaped circle that follows the contour of the tree’s branches as seen from overhead, or a minimum of fifteen (15) times the trunk diameter, measured four feet six inches (4'6") off the ground at DSH (Diameter Standard Height).

(G)    “Excessive Pruning” shall mean removing in excess of one quarter (25 percent) or greater of the functioning leaf, stem, or root area of a tree. Pruning in excess of twenty-five (25) percent is injurious to the tree and is prohibited unless approval is granted by the City Forester prior to initiating the work. Excessive pruning typically results in the tree appearing as a “bonsai,” “lion’s-tailed,” “lollipopped” or overly thinned.

(H)    “Local Landmark Tree” shall mean an outstanding, healthy, and prominent tree that is designated landmark in accordance to procedures established in this ordinance.

(I)    “Parks Superintendent” shall mean the Monterey Parks Superintendent or his or her authorized designee.

(J)    “Person” shall mean any person, partnership, firm, corporation, governmental agency, or other legal entity.

(K)    “Protected Tree” shall mean: a) trees located on a vacant private parcel that are more than two inches (2") in diameter when measured at a point four feet six inches (4'6") above the tree’s natural grade; and, b) trees located on a private, developed parcel that are more than six inches (6") when measured at a point four feet six inches (4'6") above the tree’s natural grade.

(L)    “Removal” shall mean completely taken from the site, cutting to the ground and/or extraction from the site.

(M)    “Shrub” shall mean a woody plant of relatively low height, distinguished from a tree by height and by having several stems.

(N)    “Tree” shall mean a perennial plant having a self-supporting woody main stem or trunk usually characterized by the ability to grow to considerable height and size, and the development of woody branches at some distance above the ground. Usually distinguished from a bush or shrub by size, manner of growth, and usual botanical nomenclature. Perennial shrubs are not classified as trees in this ordinance.

(O)    “Vacant parcel” shall mean an individual lot that is not occupied by a principal building or that area of a lot not occupied by a principal building that has sufficient location, width, depth and area to be subdivided from the larger lot under existing zoning regulations. (Ord. 3424 § 13, 2009)

Sec. 37-2.5 Protection of trees during construction.

All public or private construction projects requiring acquisition of a building permit shall comply with the tree protection guidelines established by the City in order to safeguard and protect any trees affected by said construction. (Ord. 3424 § 13, 2009)

Sec. 37-3 Cutting, pruning, damaging, or removal of trees from public areas; permit required; view trimming.

It shall be unlawful for any person to cut, prune, top, damage or remove, or cause to be cut, pruned, topped, damaged or removed, any tree or shrub in any City-owned park, green belt or other public area unless pursuant to a permit issued by the City Forester. In addition, it shall be unlawful to damage or remove, or to cause the damage or removal of, any tree in the public right-of-way unless pursuant to a permit issued by the City Forester.

In addition, any application for a permit to cut, prune, top or remove, or cause to be cut, pruned, topped or removed, any tree on public property for the purpose of view enhancement shall be required to demonstrate compliance with the conditions set forth in the City’s view trimming guidelines, in addition to any other permit application requirements established by the City. (Ord. 3424 § 13, 2009)

Sec. 37-4 City removal, cutting, pruning in public areas.

The City shall, at no cost to adjoining property owners, remove, cut, prune, and trim any tree in the City right-of-way where found to be potentially dangerous to health and safety by the City Forester, where necessary to encourage growth in adjacent areas in compliance with good forestry practices as specified in ANSI/Z133 Tree Care Standards, or to provide required visibility and clearances for vehicular and pedestrian traffic safety. (Ord. 3424 § 13, 2009)

Sec. 37-5 Emergency removal, cutting, pruning by utilities.

Duly authorized personnel of utility companies may in an emergency, remove, cut, trim or prune trees which are threatening to interrupt or have interrupted utility service. Such removal, cutting, trimming, or pruning shall be the minimum required to meet safety standards. The utility company shall report all such instances of emergency action on trees to the City Forester within seventy-two (72) hours of completion of the work.

Sec. 37-6 Non-emergency removal, cutting, pruning by utilities.

Duly authorized personnel of utility companies may, with the approval of the City Forester, obtain an area tree removal permit authorizing cutting, pruning, trimming or removal of trees which are threatening to disrupt utility service, provided that the City Forester is notified of the specifics of any removal work a minimum of twenty-four (24) hours before the start of work. Such cutting, pruning, trimming, or removal shall be the minimum required to meet the ANSI/Z133 Utility Trimming Standards. (Ord. 3424 § 13, 2009)

Sec. 37-7 Planting within improved City right-of-way; permission required.

No person shall plant, or cause to be planted, any tree, shrub, or other growing material, except ground cover, within the improved City right-of-way/sidewalk area or parks without permission from the Park Superintendent. In granting approval the Park Superintendent may impose reasonable conditions, including continued maintenance by the applicant; may determine the type of plant material used; and may determine the location of plant material in order that there will not be an additional maintenance burden placed on the City and that the planting will not interfere with vehicular movement and parking. (Ord. 3424 § 13, 2009)

Sec. 37-8 Removal or damaging trees on private property; permit required.

No person shall remove, damage or relocate, or cause to be removed, damaged or relocated, any tree on any private property within the City unless the City Forester has issued a permit, or unless exempt as set forth below. Normal pruning or trimming of trees on private property is expressly permitted. Normal pruning for health and maintenance will generally conform to Tree Pruning Guidelines established by the International Society of Arboriculture. “Excessive pruning” as defined in Section 37-2(G) without prior approval is a violation of permit requirements and is prohibited. Trees that die or are irreparably damaged as a result of “excessive pruning” shall require replacement in addition to any other penalty imposed under these regulations. The use of certified Arborists is encouraged to avoid excessive pruning damage. (Ord. 3424 § 13, 2009)

Sec 37-9 Exemptions.

No permit is required to remove, damage, or relocate a tree under the following circumstances:

(A)    Trees not defined as a “protected tree” in Section 37-2 of the City Code.

(B)    Trees damaged by thunderstorms, windstorms, floods, earthquakes, fires, or other natural disasters or determined to be dangerous by a peace officer, fireman, forester, or a code enforcement officer in their official capacity. The Forester shall be promptly notified of the emergency and action taken.

(C)    When removal is determined necessary by fire department personnel actively engaged in fighting a fire.

(D)    Trees located in above-ground containers.

Sec 37-10 Processing of permits; standards for permits.

Permits are required to be approved before a protected tree may be removed. The City Forester shall review and approve removals that are based on tree health and/or safety considerations. All other removals, such as those necessary to accommodate new development or building expansions, will require review and approval of the Department of Plans and Public Works. Permit requirements, review procedures and standards for issuing permits are as follows:

(A).    Application. A person who desires to move or remove a protected tree on any private parcel shall secure a permit from the City on an application provided by the City, accompanied by the required fee. The application shall contain the number, species, size, and location of the tree or trees involved, a statement of the reason for the requested action, and any other pertinent information determined necessary by the City Forester.

Upon receipt of an application for a permit, the City Forester, Architectural Review Committee, or designated representative shall review the application for accuracy and completeness and make an inspection of the subject tree(s). The City Forester may approve, deny, or conditionally approve the application, or may refer said application to the Architectural Review Committee.

(1)    If the application is incomplete it will be returned to the applicant and no action will be taken until all information needed to locate and identify the subject tree(s) and assess the basis for the request has been received.

(2)    If the City Forester determines that the request is based on considerations regarding tree health or tree safety, the application will be evaluated by the City Forester for a decision.

(3)    If the City Forester determines that the request is based on considerations other than tree health or tree safety, the application will be denied or referred to the Architectural Review Committee for a decision.

(4)    If the tree removal is proposed to clear vacant property or to provide room for a new building and/or addition, the application shall require submittal of a concurrent development plan to the Division of Planning, Engineering and Environmental Compliance.

(5)    If the tree removal application is submitted with concurrent development plans, it shall be referred to the Department of Plans and Public Works for review in accordance with the City’s Zoning Ordinance, Monterey City Code, Chapter 38. In situations where a healthy tree(s) prevents reasonable development of permitted uses, the tree may be approved for removal. Existing development on similar sites in the same zone and having similar topographic and vegetation characteristics shall be considered when determining reasonable development of permitted uses.

(B).    Standards for City Forester’s Review. A tree removal permit may be approved, denied, or conditionally approved based on the criteria set forth in this section. Decisions of the City Forester shall include findings and indicate specific standards that were identified to support the decision.

(1)    The condition of the tree with respect to disease; hazardous conditions caused by the tree including but not limited to its proximity to existing structures or high pedestrian traffic areas such as parking lots, playgrounds and pedestrian walkways; its status as an undesirable non-native species; or its interference with utility services that cannot be controlled or remedied through reasonable preservation and/or preventive procedures and practices.

(2)    The condition of the tree as a host to a plant, or insect, or other parasitic organism which endangers other adjacent healthy trees.

(3)    The number of healthy trees the parcel is able to support as determined by the City Forester based on such considerations as tree species, growth characteristics, general health of the stand, tree age, solar orientation and soil condition.

(4)    The acceptance of mitigation measures including, but not limited to, those set forth in section 37-11 below.

(5)    The value and importance of the tree on the site or in the community, based on such factors as its service as part of a windbreak system, its assistance in drainage or in the avoidance of soil erosion, its service as a component of a wildlife habitat, or its role in maintaining the existing urban forest.

(C).    Standards for Architectural Review Committee Review. The Architectural Review Committee will review decisions of the City Forester that are appealed or applications that are referred from the City Forester or Department of Plans and Public Works. The Architectural Review Committee may approve, deny, or conditionally approve the application, based on the criteria set forth in this section. Decisions of the Architectural Review Committee shall include findings and indicate the specific standards that were identified to support the decision.

(1)    Applications denied by the City Forester may be appealed to the Architectural Review Committee at the applicant’s request. Appealed applications shall include the City Forester’s recommendation and findings.

(2)    Applications denied by the Department of Plans and Public Works may be appealed to the Architectural Review Committee at the applicant’s request.

(3)    The Architectural Review Committee shall consider the information and input from the city staff and City Forester and render its decision based on the following standards:

(a)    The visual prominence, value and importance of the tree on the site or in the community.

(b)    The tree’s contribution to the aesthetic beauty of the area and the effect its removal would have on the neighboring property values.

(c)    Any evidence or testimony presented by the applicant that demonstrates the extent of concern or anxiety caused by the tree.

(d)    The acceptance of mitigation measures including, but not limited to, those set forth in Section 37-11. (Ord. 3429 § 2, 2009; Ord. 3424 §§ 1, 13, 2009)

Sec 37-11 Conditions of Removal/Mitigation measures.

If it is determined after inspection of the property by the City Forester, Department of Plans and Public Works, or Architectural Review Committee that the adverse effects of tree removal can be mitigated, conditions may be imposed on the removal based on, but not limited to, one or more of the following standards:

(A)    No replacement tree. Applications approved by the City Forester based on the determination that the tree(s) should be removed to relieve overcrowding and removal will improve the health and vigor of adjacent trees shall not require replacement.

(B)    One replacement tree. Applications approved by the City Forester based on the determination that the tree(s) should be removed for reasons of health, safety, proximity to existing structures, walkways and/or traffic areas, or by the condition of the tree as a host to a plant or insect or disease which endangers other adjacent healthy trees, and where the impact cannot be mitigated without removal, shall require replacement at a ratio of one replacement for each removal in a size and species selected by the City Forester. The replacement tree shall be planted preferably on-site.

(C)    Up to 3 replacement trees. Applications approved by the Division of Planning, Engineering and Environmental Compliance or by the Architectural Review Committee upon appeal or referral from the City Forester, or as part of a concurrent development application, shall be subject to conditions that require up to three (3) replacement trees for each removal, in a size and species selected by the City Forester. The replacement trees shall be planted preferably on-site.

(D)    Payment in lieu of replacement. Requiring payment to the City of Monterey of costs equivalent to the value of the removed tree(s) or the cost of the numbers of replacement tree(s) as determined by City Council Resolution. The value of the tree(s) shall be established and conform to standards adopted by City Council Resolution. The payment shall be used to plant additional trees off-site in a location approved by the City Forester.

(E)    Payment in lieu of maintenance. Requiring payment to the City of Monterey equivalent to the cost of two years maintenance by City of the removed tree(s), said payment to be used to fund the maintenance of additional trees planted off-site.

(F)    Maintenance and Care Program. Requiring an objectively observable maintenance and care program be initiated to insure the continued health and care of other trees on the property.

(G)    Replacement tree maintenance. All trees required to be planted on-site as replacement trees shall be required to be maintained and replaced if they do not survive or they are removed. (Ord. 3424 §§ 1, 13, 2009)

Sec. 37-12 Local Landmark Trees.

(A).    The “local landmark tree” category establishes a process for reviewing and recommending trees that should be protected and preserved because of their outstanding size, prominence, and/or health. Setback variations and variance applications will be seriously considered to assist preservation where landmark trees may constrain reasonable development of permitted uses. Existing development on similar sites in the same zone and having similar topographic and vegetation characteristics shall be considered when determining reasonable development on property containing landmark trees. Local landmark trees may be removed in situations where the tree is determined to be unhealthy, present a safety hazard, or prevents reasonable development of permitted uses on the property as set forth in Paragraphs 37-10 and 37-11 above.

(B)    Upon receipt of an application for a tree removal permit of a tree designated as a local landmark tree as defined below, the City Forester will inspect the subject tree(s) and upon determination that tree removal is not warranted by reasons of health, proximity to existing structures, walkways, and/or as host to a plant or insect or disease which endangers other adjacent healthy trees, a permit for tree removal shall be denied.

(C)    To be eligible for consideration as a local landmark tree, trees must meet the following minimum objective criteria:

(1).    Oak trees.

(a)    Ten inch (10") trunk diameter measured at a point four feet, six inches (4'6") above natural grade;

(b)    Twenty feet (20') in height measured from natural grade to the top of the canopy;

(c)    Prominently visible from public streets, public parking areas, parks or open space, from a minimum distance of one hundred feet (100').

(2)    Conifers.

(a)    Twelve inch (12") trunk diameter measured at a point four feet, six inches (4'6") above natural grade;

(b)    Thirty feet (30') in height measured from natural grade to the top of the canopy;

(c)    Prominently visible from public streets, public parking areas, parks or open space, from a minimum distance of one hundred feet (100').

(3)    Non-native ornamental.

(a)    Ten inch (10") trunk diameter measured at a point four feet, six inches (4'6") above natural grade;

(b)    Fifteen feet (15') in height measured from natural grade to the top of the canopy;

(c)    Prominently visible from public streets, public parking areas, parks or open space, from a minimum distance of one hundred feet (100').

(D)    The Architectural Review Committee shall review trees proposed for local landmark designation that meet the minimum objective eligibility criteria, and may designate any such tree landmark only if it also meets at least one of the following requirements:

(1)    Possesses special beauty, or horticultural or historic interest;

(2)    Is of such substantial size or prominence that it has significant visibility from City streets, parks, or open space;

(3)    Is of such substantial size that it makes a significant contribution to the forested skyline of the City;

(4)    Is a rare or unusual species for this area;

(5)    Is a particularly outstanding representative of the species.

(E)    Local landmark trees shall be healthy, indicate at least a seventy percent (70%) chance of surviving more than ten (10) years, and be able to be maintained without excessive threat to the public health, safety, and welfare.

(F)    Review and designation of local landmark trees shall involve notification to the owner of the property on which the tree is located and to adjacent owners prior to any hearing to determine suitability for such designation. Consent of the owner of the tree shall be required. Decisions of the Architectural Review Committee regarding such designation may be appealed to the Planning Commission and City Council in the same manner as set forth in Monterey City Code Chapter 38, Article 27. The City shall place a tag on all designated landmark trees bearing substantially the following statement: “LOCAL LANDMARK TREE - do not trim or remove without City approval.”

(G)    Trees designated as local landmark trees should be inspected by the City Forester at least twice each year at no cost to the property owner; provided, that the City Forester shall not enter on private property without prior permission of the property owner or occupant.

Sec. 37-13 Referrals and Appeals.

(A)    Public Property. Any decision made by the City Forester under this chapter regarding trees on City property, including, but not limited to, parks, green belts or street rights-of-way, may be appealed to the Public Works Director as defined in Section 38-11. Such appeal shall be submitted in writing to the Public Works Director within ten (10) days of the decision being challenged. The appeal shall state the facts and grounds for the appeal and must be dated and signed by the appellant. Decisions of the Public Works Director may be appealed to the City Manager in the same manner. The decision of the City Manager shall be final.

(B)    Private Property. Any decision made by the City Forester regarding trees on private property may be appealed to the Architectural Review Committee. An appeal to the Architectural Review Committee review shall be submitted in writing to the Department of Plans and Public Works within ten (10) days of the decision being appealed. The appeal shall state the reasons for reviewing the decision, and must be dated and signed by the person requesting the appeal.

(C)    Decisions by the Architectural Review Committee. Any decision of the Architectural Review Committee may be appealed to the Planning Commission in the same manner as set forth in the Monterey City Code, Chapter 38, Article 27. (Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

Sec 37-14 Non-liability of City of Monterey.

Nothing in this ordinance shall be deemed to impose any liability for damages or a duty of care and maintenance upon the City or upon any of its officers or employees. The person in possession of any public property or the owner of any private property shall have a duty to keep the trees upon the property and under their control in a safe, healthy condition.

Sec 37-15 Civil penalty.

Notwithstanding the availability of criminal penalties for violation of the provisions of this Chapter, any person who violates any provision of this Chapter shall be subject to the administrative citation and administrative remedies processes set forth in Article 2 of Chapter 1 of the City Code, and shall also be liable to the City by way of civil penalty. The amount of said penalty shall be established and conform to standards adopted by City Council Resolution. (Ord. 3424 § 13, 2009)