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HomeMy WebLinkAbout104-Planning Commission Staff Report 3.pdfREPORT TO THE PLANNING COMMISSION Application No./ Location APPC09-0001; 21820 Via Regina Type of Application: Appeal of a Tree Removal Permit Application to Remove Four Oak Trees Applicant/Easement Holder: Dale Parsley, 21990 Via Regina Property Owner: Hamid Lotfizadeh, 21820 Via Regina Appellants: Max Keyashian, 21818 Via Regina Hamid Lotfizadeh, 21820 Via Regina Staff: Kate Bear, City Arborist Meeting Date: September 23, 2009 APN: 503-69-013 Department Head: John Livingstone, AICP 21820 Via Regina Page 1 of 7 EXECUTIVE SUMMARY CASE HISTORY: Arborist review for installation of sewer (06-320) 5/2/06 Withdrawal of project for sewer line connection 11/13/06 Neighbor complaint about work under trees along easement 2/19/08 Application for grading permit from Building Division (09-466) 5/7/09 Application for retaining wall permit from Building Division (09-467) 5/7/09 Application for After-the-Fact Tree Encroachment permit (ATFTR09-0009) 5/8/09 Submittal for arborist review of retaining walls (ARB09-0030) 7/20/09 Tree Removal Permit Application (TRP09-0222): 8/10/09 Appeal Application filed – Keyashian (21818 Via Regina) 8/19/09 Appeal Application filed – Lotfizadeh (21820 Via Regina) 8/27/09 Notice published: 9/8/09 Mailing completed: 8/28/09 Posting completed: 9/17/09 APPEAL DESCRIPTION: Two adjoining neighbors are appealing the Community Development Director’s approval of an application for a Tree Removal Permit. 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). The easement measures 10 feet wide and extends across the south end of the property at 21820 Via Regina (see Map attached to Exhibit 16). One Appellant is Hamid Lotfizadeh, the owner of the property on which the easement occurs at 21820 Via Regina. The other Appellant is Max Keyashian, the neighbor to the south of the easement and the owner of the property at 21818 Via Regina. 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. STAFF RECOMMENDATION: Staff recommends that the Planning Commission allow the four oak trees to be removed, thereby denying the appeals, subject to the condition that no Court Order has determined that the Applicant is precluded from removal of trees within the easement prior to their lawful removal under a City Tree Removal Permit which has become final and not subject to further appeal. STAFF ANALYSIS Page 2 of 7 PROJECT DESCRIPTION The Applicant, Dale Parsley, represented by his daughter, Linda Parsley-Yelavich, and son-in- law, Mike Yelavich, has submitted a site plan to the Building Division for over-the-counter permits to grade his easement across the adjoining property, to install retaining walls along a portion of both sides of the easement, and remove four trees, for the purpose of maintenance of a portion of the easement. The foregoing work is described as the “Project” in this Staff Report and the accompanying Resolution. The easement measures 10 feet wide and is located at the lower (south) end of property owned by Hamid Lotfizadeh (21820 Via Regina). The permit 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) and, on the recommendation of their arborist, Ian Geddes, they included three additional coast live oak trees on the Tree Removal Permit application. They 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 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, on occasion, 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 which appear to interfere with use of the easement for vehicular ingress and egress and which may be impacted by installation of a sewer line. Additional tree removal or tree encroachment permits would be necessary in order to use the subject easement for vehicular ingress or egress and possibly also to install an underground sewer line. In consultation with the Assistant City Attorney, staff has been advised that the following issues are private civil matters not within the jurisdiction of the Planning Commission: (1) validity of Applicant’s recorded easement in light of this Appeal (and civil litigation) by fee owner Lotfizadeh claiming that the easement has been extinguished; and (2) extent of the Applicant’s property rights under such recorded easement (assuming its validity) to maintain their easement by removing trees in the easement for which 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 obtain 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 Application No. APPC09-0001/ TRP09-0222; 21990 via Regina, 21820 Via Regina Page 3 of 7 circumstances, the Assistant City Attorney recommends that the Planning Commission proceed 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. BACKGROUND: In 2006 the Applicant applied for a permit and arborist review to install a lateral sewer line to connect to the City’s sewer system (see Attachment 7, application 06-320 and Attachment 8, arborist report dated May 2, 2006). Later that year, staff was informed that the Applicant didn’t want to install a sewer line, but wanted to maintain ingress/egress access along this easement and that the fire department required it (see Attachment 9, letters dated November 13, 2006 and November 27, 2006). Letters from the fire department stated that it would be acceptable to use the easement for secondary access of horses and vehicles, but that they did not require it because there was adequate access using the existing driveway (Attachment 10). In February 2008, staff received a complaint from the adjacent neighbor and Appellant (Max Keyashian, 21818 Via Regina) that grading and removal of vegetation was occurring. They wanted to know if the Applicant had permits for such work. Staff went to the property to investigate and called the Sheriff’s office for assistance as well. Work was stopped (see Attachment 10, Stop Work Notice) and an incident report was filed. Staff sent a follow-up letter indicating mitigation necessary to repair damage to trees encroached upon (see Attachment 12). The Applicant hired Ian Geddes to inspect the trees and perform mitigation work (see Attachment 13). The Applicant was notified in subsequent conversations that permits were needed to continue the work. In May of 2008, they were issued and served with a Notice of Violation and Continuation of Stop Work Order prepared by the Assistant City Attorney and signed by the Building Official and the City Arborist, notifying them in writing that the required permits had not yet been applied for (see Attachment 15). Between May 2008 and May 2009, City staff corresponded with or met with the Applicant and their attorney trying to obtain compliance. In May 2009, in addition to an Application for a Grading Permit and a Building Permit for Retaining Walls, an After-the-Fact encroachment permit was applied for and obtained (Attachment 14). In July 2009, an Arborist Review for their proposed retaining walls was applied for and provided (Attachment 5). Also in July, 2009 the Applicant applied for a permit to remove four coast live oaks on their easement (see Attachment 3). In 2006, the owner of 21820 Via Regina, Appellant Hamid Lotfizadeh, was found to be in violation of City Code Article 15-29 for a fence constructed of materials not approved by the City and for enclosing a space greater than 4,000 square feet. A notice of a Code Violation has been recorded against the Lotfizadeh property. TREES Application No. APPC09-0001/ TRP09-0222; 21990 via Regina, 21820 Via Regina Page 4 of 7 The Applicant has requested City approval to remove four (4) protected trees. The total appraised value for tree #3 is $2,400. The three 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 to remove coast live oak (tree #3) does meet this criterion in that it is in the path of a proposed retaining wall. The other three oak trees (collectively called tree #5) 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 does meet 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 four oak trees do not meet this criterion, in that they 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 privacy, shade, and potentially, the value of the property available to the southern 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 does meet this criterion in the long term, in that there are alternatives to removing the four oaks. All four could be retained. However, retention of oak #3 will impact the effectiveness of the retaining wall on the down slope side of the Application No. APPC09-0001/ TRP09-0222; 21990 via Regina, 21820 Via Regina Page 5 of 7 easement, and leaving the cluster of four oaks (#5) on the north side of the easement 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 does meet 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 this Article, 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 does meet this criterion. The owner of the easement claims to have sufficient property rights to maintain the easement by removing these trees. 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 does meet this criterion. It enables the easement holder to maintain the easement. In summary, removal of the four oaks is adequately supported by 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. Overall, the Appellant has not met the burden of proof for the retention of the four oaks. NEIGHBOR CORRESPONDENCE City staff has approved a Tree Removal Permit Application and received the two appeals of the Tree Removal Permit Approval. GROUNDS OF APPEALS The Keyashian Appeal is largely based on opposition to grading and the use of the easement for vehicular ingress and egress. These issues are not within the purview of an Appeal of a Tree Removal Permit. The Building Official has determined that the grading and retaining wall plans comply with applicable regulations. An appeal of the Tree Removal Permit requires the Planning Commission to review the criteria for tree removal set forth in City Code Section 15-50.080 and as set forth above, and determine whether overall the criteria support removal of the trees in question. The Keyashians Appeal does mention that the trees in question add value, privacy, shade, and their roots prevent soil erosion. These issues should be the focus of the Planning Commission consideration of their Appeal. The analysis of the criteria above provides the City Arborist evaluation of the tree-related issues raised in the Keyashian Appeal. The Lotfizadeh Appeal requests that the Planning Commission not approve removal of any trees in the easement until litigation filed September 9, 2009, by Lotfizadeh against Parsley-Yelavich as to the continued existence of the easement is finally resolved by the Superior Court. Local planning Application No. APPC09-0001/ TRP09-0222; 21990 via Regina, 21820 Via Regina Page 6 of 7 Application No. APPC09-0001/ TRP09-0222; 21990 via Regina, 21820 Via Regina Page 7 of 7 agencies (including the City of Saratoga) generally consider it to be for the Courts to make any determination of whether a private easement remains valid, and the extent of an easement holder’s right to maintain the easement. Local planning agencies generally proceed to make land use decisions independent of the Court process, but condition their decision on any Court Order which may be issued. Hence the Resolution contains a condition of approval providing that the Tree Removal Permit (assuming it is approved by the Planning Commission) may be exercised so long as there is no Court Order prohibiting Applicant /Easement Holder from doing so. STAFF RECOMMENDATION Staff recommends that the Planning Commission find this application exempt from CEQA and deny both Appeals, so as to uphold approval of the Tree Removal Permit with required findings and conditions by adopting the attached Resolution. ATTACHMENTS: 1. Resolution denying Appeal, allowing the removal of four coast live oaks 2. Appeal applications and letters from Max Keyashian, 21818 Via Regina, and Hamid Lotfizadeh, 21820 Via Regina 3. Tree Removal Permit Application TRP09-0222 4. Arborist Review for retaining walls, August 4, 2009 5. Map showing relationship of properties, easement and ownership 6. Public Hearing Notice, List of Addresses for mailing 7. Application #06-320 for sewer connection (2006) 8. Arborist report for application #06-320, May 2, 2006 9. Letter requesting withdrawal of project and response 10. Letters from fire department 11. Stop work notice 12. Letter dated March 10, 2008 from City Arborist 13. Letters dated March 20, 2008 and June 12, 2008 from Ian Geddes 14. After-the-Fact Tree Encroachment Permit for work done in February 2008 15. Notice of Violation and Continuation of Stop Work Order 16. Recorded easement 17. Documents from Applicant 18. Exhibit “A” – Easement Maintenance Plan