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HomeMy WebLinkAboutCorrespondence provided to City Council at 12-21-2022 City Council Meeting_Redacted.\ CAI IR)R NIA NAIIVFI'[A I S(_)ClrI SCVAS Santa Clara Valley Audubon Society November 21, 2022 James Lindsay, City Manager Community Development Department 13777 Fruitvale Avenue Saratoga, CA 95070 jlindsay@saratoga.ca.us Re: Oak impacts in City of Saratoga Dear Mr. Lindsay: On behalf of the Santa Clara Valley Audubon Society, and the California Native Plant Society, Santa Clara Valley Chapter we write to express our disappointment and dismay at the failure of the City of Saratoga to implement its Tree Protection Ordinance and to protect the native oak trees at 19910 Robin Way from harm from neighboring construction. Our organizations were contacted by Kathy Esmaeili who resides at 19910 Robin Way about impacts that construction activities underway at 15300 Hume Drive are having on native oak trees on the property that she and Keyvan Esfarjani own. Ms. Esmaeili provided photographs showing construction work, including trenching and excavation, under her trees' driplines'. This work is damaging the roots of the oak trees on Ms. Esmaeili property. We understand that the area under the trees is meant to serve her neighbor for RV/parking - over the oaks' protected roots. We agree with the evidence and sentiment contained in the attached letter from the California Oaks program of California Wildlife Foundation. We expect better attention before permits are granted to projects that damage trees, and better enforcement of tree -regulation from Saratoga, a City that is proud of and values its arbor resources'. 'The City of Saratoga protects a "tree protection zone" which is the distance from the trunk to a point that is five feet beyond the canopy dripline of a tree protected by City Code. ' The importance of trees is recognized in the City of Saratoga's General Plan, where the General Plan 2040 update provides in section 3.10, Arbor Resources: "Saratoga owes much of its beauty to the wooded hillsides and native and ornamental trees found throughout its neighborhoods. Saratoga has historically recognized the importance of planting and preserving tree resources as an invaluable asset to the community. Tree preservation supports the health, safety, and welfare of Saratoga residents by preserving scenic Photographs of work at 15300 Hume Drive, excavating in the root protection zone of the oaks at 19910 Robin Way. It seems City staff has provided permits that are inconsistent with the intent of the tree protection ordinance, that numerous code violations occurred at the construction site, and that there was no oversight as the project is going through construction. As our region densifies, the trees of the urban forest provide many critical services. They moderate temperatures in homes and buildings, lessening the "heat island effect" that results from building over the natural landscape. They provide important habitat for birds and pollinators and connect isolated populations that would exist in parks and open spaces. They increase property values, reduce crime, and provide many health benefits to city residents. Oaks in particular are a Keystone species that are the foundation of our regional biodiversity. They must be protected. It is so far beyond disheartening to read through the history of the owners' attempts to protect their oak trees. They have hired their own respected arborist who sent in an extensive report based on scientific beauty, preventing soil erosion, protecting against landslides, counteracting air pollutants, reducing temperatures, and decreasing the effects of wind velocity" principles and best forestry practices. They sent letters to city officials explaining their difficulties with pictures to back up their claims. They have spoken to the city arborist and other city staff, sought counsel from the The Oak Foundation and hired a lawyer. Yet the result is that there was deep trenching within the "protected" drip zone of their trees and massive compaction of the soil from heavy equipment. Their trees have been badly pruned, some with a severe reduction in canopy, further risking their health. There will be additional construction over what should be the protected roots of their trees. It shouldn't be so hard to keep your native oaks healthy in a "Tree Friendly" city like Saratoga. We ask that you take the required actions to halt construction and avoid further encroachment into the tree roots to avoid further damage to mature protected trees. This may necessitate moving the driveway away from the root zone and other restorative actions. j�� X. ea�1,44 Linda Ruthruff Conservation Committee California Native Plant Society, Santa Clara Valley Chapter IrAAM1 kle hAaUr Shani Kleinhaus Santa Clara Valley Audubon Society Attachment 1: Oak society Attachment 2: Arborist letter California Wildlife Foundation/California Oaks, 201 University Avenue, H-43 Berkeley, CA 94710, (510) 763-0282 October 5, 2022 James Lindsay, City Manager Community Development Department 13777 Fruitvale Avenue Saratoga, CA 95070 Re: Tree impacts at 19910 Robin Way from construction activities at 15300 Hume Drive, City of Saratoga; the need to enforce City of Saratoga Tree Regulations; root protection zones for native oak trees Transmitted via email: ilindsavna,saratoQa.ca.us Dear Mr. Lindsay: The California Oaks program of California Wildlife Foundation works to conserve oak ecosystems because of their critical role in sequestering carbon, maintaining healthy watersheds, providing native plant and animal habitat, and sustaining cultural values. California Wildlife Foundation/California Oaks was contacted by Kathy Esmaeili who resides at 19910 Robin Way about impacts that construction activities underway at 15300 Hume Drive on native trees on the property that she and Keyvan Esfarjani own. Based on the information provided, we understand that the City of Saratoga has authorized construction activities at 15300 Hume Drive as well as other locations that are in violation of City of Saratoga tree protection requirements. California Wildlife Foundation/California Oaks also strongly recommends that the City of Saratoga adopt measures to prohibit encroachment within the root protection zone of native oak trees, as discussed on page 2, below. Specifically, this letter is about the City of Saratoga's approval actions that are imperiling eight protected trees —six coast live oak, an olive, and an ash —growing on the 19910 Robin Way property. Unfortunately, we understand the time and expense that Ms. Esmaeili and Mr. Esfarjani expended in retaining Dryad, LLC and legal counsel to prepare reports for the City of Saratoga about violations of Article 15-50, City of Saratoga Tree Regulations has not resulted in any corrective actions for protected trees on their property, the protected trees on the Hume Drive property, or other properties in the city. Article 15-50.010 clearly articulates the value the City of Saratoga places on its arboreal infrastructure: The City Council finds that the City is primarily a residential community; that the economics of property values is inseparably connected with the rural attractiveness of the area, much of which is attributable to the wooded hillsides and the native and ornamental trees located throughout the City; that the preservation of such trees is necessary for the health, safety and welfare of the residents of the City in order to preserve scenic beauty, prevent erosion of topsoil, protect against flood hazards and the risk of landslides, counteract pollutants in the air, maintain the climatic balance and decrease wind velocities. Section 15-50.050 defines protected trees to include native trees having a diameter at breast height (DBH) of six inches or greater and any other tree having a DBH of ten inches or greater. It further specifies: "Except as provided in section 15-50.060, it is unlawful for any person to remove, damage, prune, or encroach upon, or cause to be removed, damaged, pruned, or encroached upon any protected tree, located on any private or public property in the City without first having obtained a tree removal, pruning or encroachment permit issued pursuant to this Article and authorizing the proposed action." Section 15-50.060, Exceptions, addresses the issue of encroachment: Where removal of a protected tree or encroachment upon one or more protected trees has been specifically authorized as part of any project approval granted under this Chapter or Chapter 14 or 16 of this Code, no permit pursuant to this Article shall be required for such activity, provided the Community Development Director determines in writing that the criteria specified in Sections 15-50.080 and 15-50.120 and 15-50.140 have been met. Any protected tree authorized for removal, pruning or encroachment pursuant to such project approval shall not be removed, pruned or encroached upon, until the issuance of a building or grading permit for the improvements, which are subject of the approval. We attach for reference a letter that Ms. Esmaeili and Mr. Esfarjani sent to City Council member Rishi Kumar on September 26, 2022. The letter provides a great level of detail on the alleged improprieties. The concerns that Ms. Esmaeili and Mr. Esfarjani articulate also apply to tree removals on the Hume Drive property that appear to also be in violation of City of Saratoga Tree Regulations. The damage that the current construction activities pose to the Robin Way trees will impair the trees' ability to survive. California Wildlife Foundation/California Oaks strongly recommends that the City of Saratoga strengthen root protection requirements for oak trees to include the entire root protection zone. This area, which is half again as large as the area from the trunk to the dripline of an oak, is the most critical to the tree's health. Soil and other materials placed on top of the natural soil level, called fill, are usually compacted. They make the soil less permeable, thereby restricting or prohibiting the exchange of gases and movement of water. Excessive moisture trapped by fill can also cause root and crown rot. Because there is no guarantee that fill can be safely added around an oak tree, it is best to avoid tampering with the natural grade, or to leave the natural grade within the root zone alone and use retaining walls. Further, poor drainage is a common cause of oak tree deaths, since adequate drainage is critical to ensure a proper balance of moisture, air, and nutrients to grow and survive. Too much moisture, particularly in the warm months when natural conditions are dry, can smother the roots and encourage the proliferation of crown and root rot fungi. Lastly, trenching is another cause of tree death. Trenching usually occurs when underground utilities are installed. Digging a trench for utilities within the root protection zone of an oak can sever a significant portion of a tree's roots. Often, several trenches are opened by separate utilities. This multi -trenching is particularly destructive since it impacts a greater portion of the root system. If utilities must impinge on the root protection zone of a native oak, the trench should be dug by hand, avoiding roots, or utilities bored through the ground at least three feet below the surface. Care of California's Native Oaks, which is downloadable from http://califomiaoaks.org/oak-tree-care/ provides additional information. 2 If the Robin Way trees survive, they will continue to provide beauty, shade, and habitat for many years, and will also enhance the economic value of the property and the character of the neighborhood. California Wildlife Foundation/California Oaks strongly recommends the City of Saratoga ensure that the full root zones of the protected oak trees are addressed in the construction project and that additional impacts (e.g., pruning) adhere to protections articulated in Article 15-50. Lastly, California Wildlife Foundation/California Oaks also urges the City of Saratoga to uphold Article 15-50 on the Hume Drive property and other properties as well. Thank you for your consideration of this letter. Sincerely, I Janet Cobb Executive Officer California Wildlife Foundation j cobb(&,,californiawildlifefoundation. org Angela Moskow Manager California Oaks Coalition amoskow@califomiaoaks.org encls. September 26, 2022 letter that Ms. Esmaeili and Mr. Esfar ani sent to City Council member Rishi Kumar cc: Richard S. Taylor, City Attorney, rtaylor(&�smwlaw.com Mayor Tina Walia, twalia ,sarato a.ca.us Vice Mayor Kookie Fitzsimmons, kookieksarato a.ca.us City Council Member Mary -Lynne Bernald, mlbemald &,sarato ads City Council Member Rishi Kumar, rkumarksarato a.ca.us City Council Member Yan Zhao, yzhaoksaratoga.ca.us Planning Commission Chair Herman Zheng, zheng.hermankgmail.com Planning Commission Vice Chair Clinton Brownley, cbrownlcy(&,gmail.com Planning Commission member Sunil Ahuja, ahujasu ,yahoo.com Planning Commission member Jonathan Choi, jojo.choiAgmail.com Planning Commission member Anjali Kausar, aakausargoutlook.com Planning Commission member Razi Mohiuddin, razigmohiuddin.com Kathy Esmaeili, kathyesmaeili(&,gmail.com Keyvan Esfarjani, keyyan.esfarjaniggmail.com 3 September 26, 2022 Dear Honorable Mr. Kumar, We are writing you this letter with great deal of disappointment. Our City of Saratoga has a Code of Ethics & Values to promote and maintain the highest standards of personal and professional conduct in the City's government. Link Unfortunately, there appears to be total disregard to this code of conduct risking the public health and safety and amounting to a dereliction of public duty and a waste of taxpayers time and money. Neglecting oversight, details and ignoring the citizens escalations It has been more than one year that we have been raising concerns regarding 15300 Hume drive property new proposed plans. We met with the City Manager, James Lindsay, on April 7, 2022, hoping to resolve the issues and get a response. a) We described how we could not trust the City of Saratoga; we shared an example of unethical conduct and conflict of interest that took place involving a Saratoga city inspector. The State Attorney General revoked the contractor's license for gross violation of the Safety and Code compliance The city inspector approved that contractor's work without ever actually doing any inspections of it. The city inspector signed off safety work such as concrete slabs, posts, and blocking when the work was not even present. b) Secondly, we described alarming conduct from the city planning staff for disregarding neighbors' facts -based escalation for months (see Exhibit 1). It involved ignoring multiple escalations and expert reports for severe encroachment into the protected tree roots and ordinance violations. We had to hire an architect to study the proposed plans in depth, we learned that the plans which were getting stamped, were full of mistakes. Mr. Lindsay agreed that his staff s conduct was inappropriate and would get back to us. Nothing happened, and the situation got even worst. Instead of responding to the facts raised, it appears that the staff has a grudge against us for raising concerns and catching their mistakes; the team at the city of Saratoga appears to have encouraged the applicant to use the S139 process as a loophole to get around the neighborhood concerns and public hearing. As a constituent and a taxpayer, these actions and this conduct are unacceptable. So far, it has wasted our time and cost us close to $60K in legal and expert fees to correct many mistakes that should have been caught by the staff and avoided. Background 1) The owner of 15300 Hume Drive, Saratoga, cuts 10 trees without a permit, neighbors take notice, and alert the City. The City did not take the concerns seriously and took no enforcement action. (See Exhibit 2) Neighbors have siknificant concerns with lack of response, follow through, misrepresentation of the facts even with abundant pictures and prior owner statements. One of the neighbors said, she was told by city staff that "Oh, agents must have cut them. " or "They were not on survey .so not sure what happened. " 2) Then, after all the escalations, we received an intend to approve on a proposed plan that had many documented mistakes (unpermitted height, non -conforming lot, no CEQA review, etc), including a severe encroachment into our protected tree root zones. The Page I 1 City was overriding its own Tree Protection Ordinance for OUR trees and knowingly permitting a driveway over our oaks' protected root zones against aborist reports (see Below and Exhibit 3) while requesting fencing around the neighbors' own trees! Why theirs, but not ours? For your reference, Trees and root zones must be protected under the Adele 1.5-50. TREE PROTECTION ZONE., during the construction. Saratoga City Code: http://Iibrary.municode.com/index.aspx?clientld=16616 The Tree Regulations are Article 15-50. TREE PROTECTION ZONE THE TREE PROTECTION ZONE The tree protection zone is the distance from the trunk to a point that is five feet beyond the canopy dripline of a tree protected by City Code. We hired a highly credible Arborist, Mr. Torrey Young, to review the plans and do a site inspection; Mr. Torrey Young is the President of American Society of Consulting Arborist (ASCA), President of California Arborist Association, Chairman of Certification committer (ISA). ASCA Registered Consulting Arborist, no. 282 ISA Board Certified Master Arborist, no. WE-013IBM CUFC Certified Urban Forester, no. 121 ISA Tree Risk Assessment Qualified ASCA Tree & Plant Appraisal Qualified Mr. Young raised significant concerns about the lack of protection for our protected Oak trees and pruning against the standards. We submitted Mr. Young's report (See attached T. Young report) to the City. We never received a response, and the City disregarded his report. Below are snip from his report, SUMMARY: The City of Saratoga tree protection documents' clearly specify extensive and stringent measures to protect trees during construction. The reports of the Project Arborist, Walter Levison as well as the City of Saratoga Arborist Review both modify these requirements, apparently in deference to construction design, resulting in severe encroachment into the protected Root Zone areas. The minimal areas left as the Tree Protection Zones', as designated by fencing delineations, allow further encroachment for excavation. It is my opinion that current tree protection recommendations for the trees at 19910 Robin Way are insufficient and do not comply with the intent of the City of Saratoga's tree protection documents5 or current arboricultural standards and guidelines'. Page 12 CRITICAL ISSUES FROM DOCUMENT REVIEW: 1. The construction plan set appears to have been significantly modified since W. Levison revised his report, dated 06/21/2021: The City Arborist review is based upon this 06/21/2021 report revision. 2. There are discrepancies between W. Levison's tree protection areas. the City Arborist's (K. Obana) requirements and arboricultural professional standards and guidelines. 3. The tree canopies were reduced via pruning about August of 2021 and it is unclear what representation an the plan sets is intended as accurate. Accurate tree canopy measurements are required to fulfill the City's Root Zone determination. 4. One additional tree at the property line with 19910 Robin Way is not identified in any of the documents reviewed. including the tree appraisal values (identified in this report as tree no. 99). TREE PROTECTION PRIMARY CONCERNS: (refer to Discussion section below) 1. Canopy reduction pruning. 2. Location of protective fencing. 3. Excavation within the original Root Zone. 4. Root pruning within the Root Zone, 5. Soil grade changes, compaction, etc., within the Root Zone. 6. References to varied and outdated professional standards and guidelines. Tree protection primary concerns: 1. Canopy reduction pruning: The canopies of several of the subject trees were pruned to "crown raise" and "prune back" and "to balance the canopy of the oak trees", about August of 20218. Reportedly, the work was performed by a firm (Monster Tree Service of West Valley). without tree owner permission (Esfarjani & Esmaeili), a required permit, or required City of Saratoga Business License. It appears a number of the subject trees were pruned, yet the firm's documents cite only two trees and include two photographs of the same tree. W.. Levison references the need for significant pruning, including up to 50% of the canopy of tree no. 30. Pruning is not a. heath treatment. The removal of live foliage reduces the tree's ability to produce carbohydrates via photosynthesis, which produces energy fear growth, resistance to insects and disease and all other processes of trees. When pruning is required for practical purposes, the objectives must be achieved by removing the least amount of foliage and via the smallest cuts possible'`. Pruning immediately prior to or during construction exacerbates the damaging effects of both. Pruning should be avoided in anticipation of, during or soon after construction. 2. Location of protective fencing: Protective fencing is synonymous with the term Tree Protection Zone (TPZ) In arboricultural standards and guidelines", The City of Saratoga defines both the TPZ and the Root Zone as the distance from the trunk to a point that is five feet beyond the canopy of a Free protected by City Code."12 and "...fcilblovs the contour of the tree r:arropy and extends from the trunk to at Feast five feet beyond the drip ine"''. In his reports: W. Levison described the Root Zone of tree no. 33 as "... the ,root system likely extends some 30 to 50 feet radhiz into the 15300 Hume property as of the date of writing." However. he recommended placing fencing at 6-7 feet from tree trunks, while K. Obana only required fencing at a uniform ten feet from an existing fence, both being an extreme departure from the City -prescribed Root Zone and professional standards and guidelines',. Further, root -damaging activities (excavation, trenching, and root pruning) are planned within this severely dim inished TPZ. 3) Excavation within the original Root Zone'4: The site plans indicate a retaining wall cut, grade changes, excavation, for a drainage system and vegetative swale, all within the City -prescribed Root Zone and even within the protective fencing (TPZ), It is inevitable that tree roots will be encountered and severed: exacerbating damage from recent pruning and effects of construction activities outside the deficient TPZ. If roots are severed within the fenced TPZ as close as 6-7 feel or cioser, protecting roots further from the trees selves no purpose as Page 13 they are already severed, i.e., for the retaining wall, grading cuts, and any other excavation required outside the TPZ/fencing. 4) Root pruning within the Root Zone: Although root pruning is anticipated inside the TPZ fencing (swale) and at the driveway retaining wall, no specific guidelines for the management of root pruning is included in either Levison's reports or the City Arborist review (refer to the General Construction Site Tree Preservation Guidelines (TPG) on page 11). Daniel Jackman: Contract Arborist for the City of Saratoga, described in a memo dated 06/17i2021, that the storm drain (not the vegetative swale) should be located at a minimum distance from trees of six times their diameter (DBH), as a "commonly utilized measure". This limitation is described only in the ISA BMP for Root Management but not in reference to tree protection. This BMP reference is qualified by the statement "Cutting roots any closer to the tree is more likely to compromise stability." Industry standards and guidelines reference a number of methods to determine an adequate TPZ, typically ranging between six and 18 times the diameter of the tree's trunk. but also referencing tree species and condition as modifiers". References to root pruning or other damage at a minimum distance differ for the physiological effects and the effect on tree stability. All root pruning has a negative physiological effect. Tree stability generally becomes seriously jeopardized when pruning roots at a distance of 3-5 times the trunk diameter . Both effects are enhanced proportionately moving closer to the trunk. 5) Soil grade changes, compaction, etc., within the Root Zone: Excavation, root pruning: and grade changes have all been planned to occur within the Root Zone. All result in damage, as defined by the City's ordinance. Any such root -damaging activity near the trees renders any mitigation efforts further away from the trees ineffective. In other words, precluding such damage at the maximum distance possible is critical to tree preservation. The proposed access route ("construction corridor" as per W. Levison) is described as plywood on the soil surface, which is insufficient to protect against compaction. Move the proposed access route to outside the City -prescribed Root Zone. Consider using the existing driveway rather than delineating a new path adjacent to trees. If another access routes(s) is allowed, plywood on the soil surface is insufficient and protection against compaction should follow industry standards and guidelinesEr`°' Bookmark not defined. which describes a thick mulch underlayment, overlaid with temporary roadbed materials. 6) References to varied and outdated professional standards and guidelines: The City of Saratoga offers at least three documents that are specific and consistent in their tree protection requirements. as follows: 1. City of Saratoga Municipal Code, Chapter 15, Zoning Regulations, Article 15-50 Tree Regulations_ 2. City of Saratoga Arborist Checklist. 3. City of Saratoga Tree Protection Handbook, 01/17/1996. Within these three documents are references to several outside arboricultural publications, as follows: 1. "International Society of Arboriculture Commission (ISA) Pruning Standards (2001 Edition)" and the "2001 Edition of the Pruning Standards". There is no such organization as the ''ISA Commission" and no such document as the "2001 Edition of the Pruning Standards". The International Society ,of Arboriculture produced one publication of "Tree Pruning Guidelines" in 1995. The ISA has been publishing Best Management Practices (BMP) for Tree Pruning since 2002. 2. "April 2000 Guide for Plant. Appraisal". This publication has been superseded by the current Council of Tree and Landscape Appraisers, 2019, Guide for Plant Appraisal, Tenth Edition, Second Printing, International Society of Arboriculture. Current industry standards and guidelines include the following documents, most relevant to this project: 1. American National Standards Institute, 2019. Tree: Shrub and Woody Plant Management Standard Practices, Management of Trees & Shrubs During Site Planning, Site Development and Construction, American National Standards Institute (ANSI A300 Part 5-2019). 2. International Society of Arboriculture 2016. Best Management Practices. Managing Trees During Site Planning, Site Development and Construction, International Society of Arboriculture, 2016. 3. American National Standards Institute, 2013. Standard Practices for Tree, Shrub and other Woody Plant Maintenance (moot Management), American National Standards Institute (ANSI A300 Part 8-2013). 4. International Society of Arboriculture, 2016, Best Management Practices, Root Management, Intemational Society of Arboriculture, 2017. Applicants own Arborist, Walter Levison, which the City is also using as a reference, citing several items as incomplete and needing further discussion and others as needed neighbor permission. See Below (Black box indicates our comments). JX-Valter Lev1SUl] i �) �,u 11r;tv�s ARBO: i 6 r ISA Qualified Tree Risk Assessor ASCA Registered Consulting Arborist #401 ISA Certified Arborist #WF.-3172A Protection Status Ref- Code Disposition Trees Summary of Protection and Maintenance Totals (per available plan sheets) (Tag Numbers Items Stated) Oaks #30, 31, 32, 33 vs. retaining wall & driveway Fencing: (TPZ fencing — chain link, as noted Applicant _ W. Levison. in the 'Recommendations' sectiony The 3-foot height retaining wall area needs _ assessmentto be modified in terms of its footing depth/type such that we do not cut through further discussion. the entire root system of each tree while Per our •ert arborist report,' • NOT installing footings. This is an item for further AGREEgross encroachmentinto discussion. The most tree root -friendly OUR protected tree • _ footings are typically discontinuous footings, such as piers drilled in on a 10 foot O.C. spacing, spanned by a floating grade beam footing that is only set into the ground 0 to 6 inches below original soil grade elevations- 0 kk�. lter Levison ISA Qualified Tree Risk Assessor ASCA Registered Consulting Arbonst #401 ISA Certified Arborist #WE-3172A 3.0 Discussion The project architect designed the driveways and south side retaining wall such that they are basically clear of trees being retained, such as the large holly oak specimen #13 and redwoods #21, 22, 23, 24. 25, and #26. However, other trees such as #13, 17, 30, 31. 32. and #33 noted above on this page will sustain some impacts related to pruning, retaining wall foundation footing cut depths, and other factors. Page 15 The potentially "non-mitigable" impacts are related to vertical and horizontal airspace clearance pruning required to clear both the proposed north side driveway, and the proposed ADU building massing at the northeast corner of the property. The severity of pruning is to be determined, but can be somewhat determined qualitatively by looking at the WLCA tree map markup attached to the end of this report. • Oak #30: The map shows that roughly 50% of the canopy of oak #30 wi be Gea degree where it overhangs the proposed new'driveway and a corridor of space between the driveway and the TPZ root protection zone fence. The current location of the canopy starts at 13 feet above grade, which means that only 1 additional foot of vertical clearance is required. Therefore, pruning is expected to be "minor" (to be determined). 0 W—dier Lecison AN ISA Qualified Tree Risk Assessor ASCA Registered Conwhing Arborist #401 ISA Ceniried A,bdri%! ONE•3172A 2e. PRUNING: WLCA mayor may not need to be present during clearance pruning of oaks #W 31. 32. 33. As long as the person(s) actually performing the work have an ISA Certified Arborist on site and supervising the entire operation 100 % of the time while pruning is occurring, then there is no need to have WLCA on site during this work. 2f. TRENCHING: All irrigation pipe trenches, utility benches, storm drain pipes, area drains, drainage swales, and roof downspout drain pipes shall maintain offsets such that they are completely outside of the RPZ chain link fence enclosures as currently shown as red dashed lines on the WLCA tree map markup attached to this report. The Arboriculture Best Management Practice would be to maintain roughly 15 to 20 Page 1 6 15300 Hume Dr City of Saratoga Arborist Report June 17, 2021 4. Please note any pruning (if any) of the neighboring trees will require written consent from the owner of the neighboring property prior to commencement of pruning. 15300 Hume Dr City of Saratoga Arborist Report August 5, 2021 Arborist Report Changes: The recommended tree security deposit in the arborist report needs to be amended. Per City code, the security deposit must be 100% of the appraised value of any protected tree with existing canopy within 5' of proposed construction activities, as there is more than one structure being constructed in association with this project. DONE Please note any pruning of the neighboring trees will require written consent from the owner of the neighboring property prior to commencement of pruning. NOT DONE - One of the following needs to be done: a. Obtain written consent from the owner of the neighboring property prior to commencement of pruning_ for clearance of the proposed ADU. OR, b. Update the design of the proposed ADU to be located outside of the canopy of the neighboring trees #32 & #33. 20- PRUNING / WRITTEN CONSENT FOR NEIGHBOR TREES: The city arborist requested in the letter of incomplete dated 6/17/2021, item #4, that WLCA consider whether any pruning of neighbor trees to clear the project construction work would require "consent" of the neighbor tree owner. At the time of writing, it is expected that some pruning may be required to dear the project area by use of horizontal and/or vertical airspace clearance pruning techniques on any or all of trees #30, 31, 32, 33. The relationship between the applicant and the neighbor is not known_ Therefore, WLCA suggests at this time that consent for such pruning be requested by the applica to fro -neighbor, in the prospect that one or more of the above- rees en s up requiring clearance pruning during the site plan project buildout period. 18 of 29 Site Address: 15300 Hume Drive, Saratoga. CA Version: 6f21/2021 Walter Levison L 2021 All Rights Reserved Registered Member. American Society of Consulting Arborists and Member of the International Society of Arbonculture Cell (415) 203 0990 Email walterslevisonirrrZ yahoo.com Expected Outcomes Page 17 We respectfully request a follow-up to this matter and a thorough investigation with specific responses to the concerns raised. We, along with several neighborhood members, would like to meet with the appropriate Council members regarding ethics matters since this is only a symptom of a bigger problem. See below picture for obvious examples of a construction sites on Fruitvale Ave or Glen Una Dr. without any tree protection fencing around the oak trees. Why is our city totally neglecting our protected trees? 15-50.120 - Setback of new construction from existing trees. Unless otherwise permittec cy the approving a.ithonty, vo s-rt ccj-e. ex.cavatior• or impeiviot.s s.iIace a. easrcf 3ry kin., sl*all ce...rstractecl or installed w;=thir the root zone of any protected t-ee Withojt J-i-gatrng spec-ai cesig i. sccn as postar.d berm tcctrgs tl,at h -id e the roots. No parking, storing of vehicles, equipment or other materials shall be permitted within the dripane of any protected tree without speciai design considerations approved by the Coirr-xiity- Development Director and the City Af,bor'sr. Page 18 During a recent neighborhood meeting, it was recommended that the City establish an Ethics and Compliance Committee for periodic audits, training, and compliance. Many cities have this precedent which is facilitated by the citizens and third parties. Saratoga residents need to have a committee for ensuring fairness, openness, honesty, and integrity in the city government. The lack of communication can only be explained due to a personal grudge and then forcing us to hire a lawyer. City employees cannot ignore ordinances and dictate their way by totally disregarding reasonable comments by experts. This is putting the city at risk and leaving citizens with no choice other than legal escalations. We as the constituent, should not be spending more than $60K on legal fees and expert fees so far for correcting so many of the city's mistakes and unreasonable decisions. We have run out of patience for continuing to waste time and keep providing reasonable facts and proofs — all totally ignored. We are not even given a response for an Appeal. We need our City to step in, address these issues, and protect its own ordinances, the environment, and our protected Oak trees. And let's please not use SB9 as a loophole to get around ordinances, code violations, and public concern when it involves damaging OUR OAK TREES. The optics for the code of conduct here is terrible. We are seeking the City Council to step in and conduct a thorough investigation on the approval of the 15300 Hume Dr. project, get to the root cause of the issues, and help to resolve the matter before further escalations. Sincerely, Keyvan and Kathy Esfarjani Page 19 EXHIBIT 1 Multiple Escalations for Months Page 110 Date Events and Escalation City Response Inspector shows up after 2 hours when trees were vanished; 8 people from tree company on the site 2/10/2021 Neighbor notified the city for large tree cuttings saying, "just cleaning up". No violation given even when the neighbor witnessed trees coming down in the morning. 2/23/2021 W. Levinson Neighbor Arborist visit the site for survey after trees were already removed 10/29/2021 Notified the City of Saratoga about neighbor tree NO RESPONSE cutting issues and code violation Emailed city arborist requesting the permits for so City arborist, Christina Fusco, responds in believing 12/21/2021 many mature trees that have been removed. And that the diameters were less than 10 inches. No escalating our protected oak trees have been investigation. significantly pruned without our approval Kathy Emailed city arborist showing proof based on 1/4/22, City arborist, Christina Fusco, responds in 12/21/2021 on the pictures and prior owner's son statement saying trees were not on the survey. Evidence of the that the trees were bigger than 10 inches pictures disregarded Emailed City planner, Nicole Johnson, Story poles 2/8/2022 & have been erected. Asked about timeline for corresponded with timeline providing feedback. Emailed our concerns and feedback to the city of 2/15/2022 & Saratoga Planner, Nicole Johnson, regarding the NO RESPONSE 2/16/2022 neighbor's plans after seeing the story poles we invited the neighbor to our house welcoming them and to discuss our feedback, see firsthand 2/19/ 2022 the loos of our privacy, and come up with a Neighbor did not want to cooperate resolution we proposed; Asked to not encroach in to our protected tree roots. Shared summary with the city Emailed City planner, Nicole Johnson- Indicated issues on the plans such as heights, unreasonable City planner, Nicole Johnson indicated need to come 2/25/2022 loss of privacy, and close distances after meeting to city to see plans. with the neighbors Emailed City planner, Nicole Johnson indicating that neighbor unwilling to do any of the Nicole Johnson, responds, The owners have agreed 2/28/2022 reasonable things we respectfully requested to to install a 6' tall fence with 2' of lattice and will avoid or mitigate such dire impacts on us, and our install privacy screening as a condition of approval home, our trees and property. We also requesting public document ... Emailed City planner, Nicole Johnson- repeating Nicole requested a house visit that was completed 3/1/2022 our many concerns since we got no answer on 3/7/22 Page 111 Emailed City planner, Nicole Johnson- Followed up 3/8/2022 on Nicole's house visit and again explained our NO RESPONSE concerns and requested a response Emailed City planner, Nicole Johnson- in regard to 3/9/2022 concerns with wall height information missing and NO RESPONSE incorrect story poles Kathy, Keyvan, and our arborist met with City 3/10/2022 planners, Debbie and Nicole to obtain answers on NO RESPONSE severe encroachment. Email follow-up was sent 3/22 2022 / per Debbie Pedro request, we put together a NO RESPONSE report and sent out the evidence on vanished trees 3/22/2022 notice for approval 4/7/2022 Met with City manager, James Lindsay, and first NO RESPONSE letter from attorney sent 4/28 2022 / Second letter from attorney sent along with detail NO RESPONSE arborist report 4/6/2022 1st neighbor sent escalation letter as a follow up to NO RESPONSE the city on 3/29/22 4/6/2022 2nd neighbor sent escalation letter NO RESPONSE 5/3/2022 Applicant withdraws applications and story poles comes down 7/29/2022 Sr. City Planner, Nicole Johnson, to Kathy - Notifying that Neighbor submission of SB9 application 8 10 2022 / / Third legal letter sent in regard to SB9 City Attorney finally responds to our attorney incompatibility 8/24/2022 Sr. City Planner, Nicole Johnson, Notifying of SB 9 application approval Page 112 EXHIBIT 2 Large number of trees cut without permits Page 113 �n rn rrn nnur nrru nrnnnvrn L 19/2020 . ' )/2021. ovl' .tea ,: iL��� .-.�QA a,�.�, ..� %♦i��� EXHIBIT 3 Encroachment in to Esfarj ani protected trees Page 115 Per City of Saratoga Municipal Code, Trees and root zones must be protected under the Article 15-50. T1�E PR.QT1-:Q'T1Q1,�T ZONE,, during the construction. ;i Saratoga City Code: http://Iibrary.municade.com/index.aspx?clientld=16616 Article 15-50. TREE PROTECTION ZONE go THE TREE PROTECTION ZONE The tree protection zone is the distance from the trunk to a point that is five feet beyond the canopy dripline of a tree protected by City Code. 0 16� CL �..�.. �. r E S � f Y.$ 4L1 Q E � L ZA a a C 1 \ Lin i � 1 � 4► T �C) ? �R I «�+ 0 F 0 3 Zi cR y 15300 Hume Drive Regulations are Page 1 16 S H UTE M I HALY WEINBFRCERu_P 396 HAYES STREET, SAN FRANCISCO, CA 94102 GABRIEL M.B. ROSS T: (415) 552-7272 F: (415) 552-5816 Attorney www.smwlaw.com Ross@smwlaw.com October 21, 2022 By email Matthew D. Francois Rutan & Tucker, LLP 455 Market St., Ste. 1870 San Francisco, CA 94105 E-Mail: mfrancois@rutan.com Re: 15300 Hume Drive Dear Mr. Francois: I am writing in response to your appeal application and letter of October 11, 2022, regarding your clients' concerns about City ministerial approval of a two -unit development at 15300 Hume Drive ("the Project"). As we explained in our letter of October 3, 2022, the City's approval, as expressed in its letter to the applicants of September 12, 2022 (the "Corrected Approval"), was appropriately granted under Government Code section 65852.21 (a portion of "SB9") and the applicable portions of the Saratoga Municipal Code ("SMC"). SB9, specifically Government Code Section 65852.21(a), bars any appeal of the Project approval. This letter does not reiterate those explanations, but touches on a few issues you have raised for the first time. Most importantly, we again point out that SB9 bars administrative appeal of any part of the City's approval of the Project I. The City May Not Hear This Appeal. As we have discussed, SB9 provides that the City must consider the Project "ministerially, without discretionary review or a hearing." Gov. Code 5 65852.21(a). An appeal to the City Council necessarily involves a hearing before the City Council and the Council's discretionary determination on the merits. SMC 5 2-05.030(f, g). These procedures are inconsistent with SB9's overriding requirements. The state statute thus bars he City from entertaining any appeal of the Corrected Approval. The Corrected Approval is, as required by SB9, a ministerial action and thus unappealable. Despite this clear law you have identified several City actions you believe are appealable. First, you purport to appeal two City staff determinations: "that `the proposed Matthew D. Francois October 21, 2022 Page 2 project is consistent with the City's applicable objective planning standards and is eligible for its streamlined, ministerial review"' and "that the `proposed residential development conforms to Saratoga Ordinance 385."' These determinations are plainly a part of the Corrected Approval and not subject to appeal. Next, you purport to appeal "the City's authorization of encroachment into the root zones of several protected trees absent the requisite permits." The City Arborist approved the Tree Protection Plan proposed as part of the Project pursuant to the Tree Protection Ordinance (SMC 5 15-50.140) in the Arborist Report attached to and incorporated in the Corrected Approval. The Arborist Report is thus a ministerial determination, inseparable from the rest of the SB9 approval. To hear an appeal of any of the ministerial determinations under SB9, including those contained in the Arborist Report, would plainly violate Government Code section 65852.21 and SMC § 2-05.030(b). We are aware of no principle of due process that would override these legislative judgments in order to provide a neighbor with an otherwise - unauthorized appeal. Finally, you purport to appeal several "determinations" in my letter of October 3. That letter, however, merely explained the various ministerial determinations underlying City staffs approval of the Project and described the City's interpretation of the relevant provisions of the SMC and SB9. That letter made no "determinations" and is thus not the valid subject of an appeal. II. The City Appropriately Issued the Corrected Approval. To the extent that your latest letter repeats prior arguments regarding the Project's compliance with the objective standards of Saratoga Ordinance 385 and the SMC and the City's enforcement authority as to the unrelated violations that you allege, I refer you to my letter of October 3, 2022, in which I set out the City's position on these matters. To clear up one point of confusion, Ordinance 385 was adopted under Government Code section 36937, which includes no expiration provision. It was therefore in effect when the Project application was submitted. I also note that comments and evidence received after the September 12, 2022 date of the Corrected Approval are not relevant to that approval. You raise the new claim that the Project is subject to CEQA through the need for a discretionary permit under the Tree Protection Ordinance. As explained in my October 3 letter, City staff has determined that no such permit is required. Moreover, under SB9, the City must consider the Project ministerially and may apply only objective standards. Any permit required as part of the Project approval would be subject to these state mandates. A ministerial action is not subject to CEQA. SHLTE WHALY V'LLINBLRGLVir Matthew D. Francois October 21, 2022 Page 3 Conclusion For the reasons stated above, the City cannot hear your appeal. We will not process your check for the appeal fee. Moreover, the Corrected Approval remains valid and in force. Very truly yours, SHUTE, MIHALY & WEINBERGER LLP Gabriel M.B. Ross cc: James Lindsay, City Manager Debbie Pedro, Community Development Director Nicole Johnson, Senior Planner Chihong John Ju and Huey Lin Ju SHUTS MIHALY WUNNLRGLRm