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HomeMy WebLinkAbout101-Staff Report.pdf SARATOGA CITY COUNCIL MEETING DATE: November 4, 2009 AGENDA ITEM: DEPARTMENT: Community Development CITY MANAGER: Dave Anderson PREPARED BY: Kate Bear DIRECTOR: John F. Livingstone, AICP SUBJECT: Appeal of a tree removal permit (TRP09-0222). RECOMMENDED ACTION: Staff recommends that the City Council uphold the Planning Commission decision denying the appeal and allowing the removal of the four oak trees. The attached resolution would make removal subject to all the Planning Commission conditions, including a provision that work may not proceed if a court has determined that the Applicant may not remove trees within the easement. REPORT SUMMARY: Max Keyashian (Appellant) is appealing the Planning Commission’s 7 – 0 decision approving an application for a Tree Removal Permit. He lives at 21818 Via Regina, on the property that is adjacent to and south of the location of the trees. The Tree Removal Permit application is for four coast live oak trees located within an ingress/egress/utility easement recorded in favor of property owned by Dale Parsley of 21990 Via Regina (Applicant). One tree requested for removal is in conflict with a proposed retaining wall on the south side of the easement and crowds another, larger coast live oak tree on the adjoining property at 21818 Via Regina. The other three trees grow within inches of, and crowd, a fourth coast live oak to be retained on the north side of the easement. The easement on which the trees grow measures 10 feet wide and extends across the south end of the property at 21820 Via Regina (see map below and map in Attachment 18). The property on which the easement occurs is owned by Hamid Lotfizadeh. He, along with Max Keyashian, appealed the approval of the tree removal permit to the Planning Commission. Mr. Lotfizadeh is not appealing the Planning Commission decision to the City Council, but has informed the City through his attorney that he has filed legal documents with the Santa Clara County Superior Court, in an effort to have the easement extinguished. The Planning Commission staff report describes the history of development applications for this property in detail. 1 Map showing  relative locations  of properties for  the Applicant and  Appellant, and the  easement on  which the trees  grow.  DISCUSSION: The Applicant has submitted a site plan to the Building Division for over-the-counter permits to grade a portion of the easement area, to install retaining walls along a portion of both sides of the easement, and to remove four trees, for the purpose of maintenance of a portion of the easement. The permit application for the retaining walls required an Arborist Review prior to issuance and the Arborist Review, in turn, required a Tree Removal Permit prior to the removal of the protected trees and issuance of the Grading and Building Permits. The Applicant applied for a Tree Removal Permit for a coast live oak (tree #3 in the Arborist Review) and, on the recommendation of their arborist, Ian Geddes, they included three additional coast live oak trees on the Tree Removal Permit application. The three trees grow as a cluster, together with another coast live oak, that they plan to retain. These four oaks were collectively considered as one tree for the Arborist Review (tree #5). The four coast live oak trees requested 2 3 for removal (tree #3, and 3 trunks of tree #5) meet the criteria set forth in the City Code, Section 15-50.080 overall, and qualify for removal. The Applicant has verbally indicated that he plans to ultimately use the easement for vehicular ingress and egress and/or to install a sewer line to connect to the public sewer system, although no plans or information about such uses or related improvements have been submitted to the City as part of this Application. The Applicant has not requested the removal of other protected trees growing within the easement as part of the tree removal permit application. Some of these trees appear to interfere with use of the easement for vehicular ingress and egress and may be impacted by installation of a sewer line. Additional tree removal or tree encroachment permits may be necessary in order to use the subject easement for vehicular ingress or egress and to install an underground sewer line. The Planning Commission, after considering all evidence presented and the advice of the Assistant City Attorney, concluded that the following issues are private civil matters: (1) The validity of the Applicant’s recorded easement in light of civil litigation by property owner Lotfizadeh claiming that the easement has been extinguished; and (2) The extent of the Applicant’s property rights under the recorded easement (assuming its validity) to maintain the easement by removing trees in the easement on the condition that the City has granted final approval of a Tree Removal Permit. The Applicant has submitted evidence in the form of a recorded easement and a survey stamped by a Licensed Civil Engineer contending that the trees sought to be removed are within the recorded easement and that Applicant holds a sufficient property interest to obtain the Arborist Review and the required Tree Removal Permit without a signed consent from the property owner on which the easement is located or any adjoining property owner. Under these circumstances, the Planning Commission proceeded on the basis that such recorded easement is valid and sufficient to allow the City to approve the requested Tree Removal Permit, so long as it complies overall with the criteria set forth in the City Tree Regulations, and there is no Court Order precluding the Applicant from proceeding. TREES The Applicant has requested City approval to remove four (4) protected trees. The total appraised value for tree #3 is $2,400. The three trunks being removed as part of tree #5 should be replaced on a one for one basis, with three new 24 inch box sized trees, the standard condition for tree removal permits. New trees, equal to $2,400 in value should be planted to replace tree #3, in addition to the required three 24–inch box trees. Criteria for the Removal of a Protected Tree The findings required for issuance of a Tree Removal Permit pursuant to City Code Article 15- 50.080 are set forth below and the Applicant has met the burden of proof to support making those required findings overall: Criterion #1: The condition of the tree with respect to disease, imminent danger of falling, proximity to existing or proposed structures, and interference with utility services. The request 4 to remove coast live oak (tree #3 referenced in the Arborist Review dated August 4, 2009) meets this criterion in that it is in the path of a proposed retaining wall. The other three oak trees (collectively called tree #5 in the Arborist Review dated August 4, 2009 because the trees grow as a single unit) do not meet this criterion in that they do not appear diseased. They also do not appear to be in danger of falling and are not causing damage to structures. Based on the information provided by the applicant, they do not interfere with utilities. Criterion #2: The necessity to remove the tree for physical damage or threatened damage to improvements or impervious surfaces on the property. The request to remove oak tree #3 meets this criterion, in that, if it is not removed, it could cause damage to the proposed retaining wall. The other three oaks (#5) do not meet this criterion. Criterion #3: The topography of the land and the effect the tree removal would have upon erosion, soil retention and the diversion or increased flow of surface waters. The proposed tree removals do not meet this criterion, in that the trees are actively having a positive effect on the prevention of erosion. They grow on a slope and their roots are holding the soil in place. Criterion #4: The number, species, size and location of existing trees on this and neighboring properties and the effect the removal would have upon shade, privacy impact, scenic beauty, property values and established standards of the area. The proposed tree removals do not meet this criterion, in that the removal of the four oaks will have an impact on the amount of privacy available to the lower neighbor. Criterion #5: The number of healthy trees the property is able to support according to good forestry practices. The proposed four tree removals do meet this criterion, in that all four are too close to other trees for good forestry practices. Oak tree #3 is within about two feet and grows completely under the canopy of another, larger oak with better structure. The three oaks (#5) are within inches of another oak and, in the near future, if they continue to grow together, by the time they are mature they could fail as a result of the trunks pushing against each other. Criterion #6: Whether or not there are any alternatives that would allow for retaining or not encroaching on the protected tree. The proposed tree removal meets this criterion because there are no equally effective long-term tree-protective alternatives to removing the four oaks. While technically possible to retain all four trees, retention of oak #3 will adversely affect the long-term health of the nearby oak tree on the neighboring property to the south, and leaving the cluster of four oaks (#5) will result in four poorly-structured trees as they mature. As a result there are no equally effective long term tree protective alternatives. Criterion #7: Whether the approval of the request would be contrary to or in conflict with the general purpose and intent of this Article. The proposed tree removal meets this criterion, in that approval of the request to remove the four oak trees is not in conflict with the general purpose and intent of Article 15-50, which is to preserve and protect healthy, mature trees in the City. In this situation, all four trees are right next to other, preferable oak trees and in competition with them. Criterion #8: Any other information relevant to the public health, safety, or general welfare and the purposes of this ordinance as set forth in section 15-50.010. Removal of the four oak trees meets this criterion in that it will support maintenance and prevention of erosion on and 5 associated with the easement.The applicant has presented the City with a duly recorded easement covering the land on which the trees are located. Criterion #9: It is necessary to remove the tree for economic or other enjoyment of the property when there is no other feasible alternative to the removal. Removal of the four oak trees meets this criterion. It enables the easement holder to maintain the easement. In summary, removal of the four oaks is adequately supported under the criteria set forth in Section 15-50.080 of the City Code. The Applicant meets the burden of proof for tree #3 in that Criteria 1, 2 and 5 – 9 support the removal of the tree. The Applicant also meets the burden of proof for tree #5 in that criteria 5 – 9 support the removal of the three trees. ENVIRONMENTAL DETERMINATION: The project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines (14 C.C.R. Section 15304) “Minor Alterations to Land” and no exception to that exemption applies. FISCAL IMPACT: None. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The trees will remain on the easement and the Applicant will need to submit revised plans that do not require the removal of tree #3. Tree #5 will mature into four trees that will each have poor structure. FOLLOW UP ACTION: Provide staff with direction for follow up action. ADVERTISING, NOTICING AND PUBLIC CONTACT: Notice of this meeting was mailed to all residents within 500 feet of the property and properly posted and published in the Saratoga News on October 20, 2009. Staff has not received any negative comments as of the writing of this staff report. ATTACHMENTS: 1. Resolution denying Appeal, allowing the removal of four coast live oaks 2. Planning Commission Resolution, allowing the removal of four coast live oaks 3. Staff Report to Planning Commission without attachments 4. Appeal application to City Council from Max Keyashian, 21818 Via Regina 5. Appeal applications to Planning Commission from Max Keyashian, 21818 Via Regina, and Hamid Lotfizadeh, 21820 Via Regina 6. Tree Removal Permit Application TRP09-0222 7. Arborist Review for retaining walls, August 4, 2009 6 8. City Council Public Hearing Notice, List of Addresses for mailing 9. Application #06-320 for sewer connection (2006) 10. Arborist report for application #06-320, May 2, 2006 11. Letter requesting withdrawal of project and response 12. Letters from fire department 13. Stop work notice 14. Letter dated March 10, 2008 from City Arborist 15. Letters dated March 20, 2008 and June 12, 2008 from Ian Geddes 16. Notice of Violation and Continuation of Stop Work Order 17. After-the-Fact Tree Encroachment Permit for work done in February 2008 18. Recorded easement 19. Documents from Applicant to Planning Commission 20. Documents from Applicant to City Council 21. Exhibit “A” – Easement Maintenance Plan