Brisbane Municipal Code Ch. 12.12 Private Tree Regulations

Footnotes:

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Editor's note— Ord. No. 638, § 2, adopted October 3, 2019, repealed the former Chapter 12.12, and enacted a new Chapter 12.12 as set out herein. The former Chapter 12.12 pertained to tree regulations and derived from Ord. No. 413, § 1 (part), adopted in 1997; Ord. No. 504 §§ 1, 2, 4—7, adopted in 2005; Ord. No. 554, § 40, adopted January 18, 2011; Ord. No. 559, § 5, adopted May 16, 2011.

This chapter shall be known as the City of Brisbane Private Tree Regulations Ordinance.

(Ord. No. 638, § 2, 10-3-19)

This chapter is adopted for the following purposes:

A. To protect certain trees that contribute to the scenic beauty of the city, or are found to be of value or significance as a native tree species, or are required to be planted and maintained as a condition of development approval;

B. To prevent the indiscriminate removal of trees;

C. To protect trees that provide protection against erosion, land instability, flooding, or other hazards;

D. To maintain the urban forest consistent with the goals of the city's climate action plan and general plan;

E. To require the maintenance of private trees that may encroach into the public right-of-way, to avoid hazardous conditions that could result in injury to persons or property.

(Ord. No. 638, § 2, 10-3-19)

A. The provisions of this chapter shall apply to the following:

1. Removing or severe trimming of trees on private property.

2. Removing of trees within the public right-of-way that are subject to a maintenance agreement.

3. Maintaining trees on private property that encroach into the public right-of-way.

B. This chapter shall not apply to the following:

1. Juvenile trees. A juvenile tree, as defined in Section 12.12.040.E, may be removed without a notice or permit to the city, unless it is a protected tree as defined in Section 12.12.040.I.2 or 12.12.040.I.3 (resolution protected or permit protected).

2. Trees on public property. Trees on public property may be removed from public property as determined by the city engineer, except as provided in Section 12.12.030.A.2.

3. Trees affected by public utilities. Trees within such areas as public utility easements or public rights-of-way where the public utilities are subject to the jurisdiction of the State Public Utilities Commission may be removed if necessary to comply with the safety regulations of the Commission and if necessary to remove a direct and immediate hazard to the utilities.

4. Trees removed when authorized by the city. Trees may be removed where removal has been authorized by a city approved development project, other discretionary permit or building permit.

(Ord. No. 638, § 2, 10-3-19)

For the purposes of this chapter, the following words and phrases shall have the meanings:

A. "Adjacent property" means a property that is abutting the subject property.

B. "Design size" means the anticipated size range at the tree's maturity.

C. "Director" means the community development director of the City of Brisbane or other person as the community development director may designate from time to time to perform the responsibilities assigned to the community development director under the provisions of this chapter.

D. "Invasive species" means any species of tree listed as invasive to the area by a community development director-approved professional organization, such as the Invasive Species Council of California (ISCC) or the California Invasive Plant Council (CAL-ICP).

E. "Juvenile tree" means a tree whose trunk measures less than thirty (30) inches in circumference at twenty-four (24) inches above grade for a standard tree form, or the equivalent trunk cross-sectional area for multi-trunked trees.

1. "Mature tree" means a tree whose trunk measures thirty (30) inches in circumference or more at twenty-four (24) inches above grade for a standard tree form, or the equivalent cross sectional area of trunks for multi-trunked trees.

F. "Multi-trunked tree" means a tree with more than one trunk sharing a single root system. Multi-trunked trees are distinguished from shrubs in that they are usually larger than fifteen (15) feet at maturity.

G. "Non-protected mature tree" means any tree that fits the size criteria for a mature tree and is not listed under the definition of protected tree in this section. This includes any number of invasive species (see the definition of invasive species in Section 12.12.040.D) and up to two non-invasive mature trees that are not protected by city council resolution or by city permit, per Sections 12.12.040.I.2 and 12.12.040.I.3.

H. "Protected tree" means each of the following:

1. Species protected: Any California Bay (Umbellularia californica), Coast Live Oak (Quercus agrifolia), or California Buckeye (Aesculus californica) that is a mature tree and is not otherwise defined as protected tree.

2. Resolution protected: Any tree designated as a protected tree by resolution of the city council.

3. Permit protected: Any tree, regardless of size, originally required by the city to be planted as a condition for the granting of a permit, license, or other approval, or any tree that existed at the time of the granting of such permit, license, or other approval and required by the city to be preserved as part of such approval. This includes any tree protected by a maintenance agreement, whether on private or public land. This also includes any tree, regardless of size, required by the city to be planted as a replacement for an unlawfully removed tree.

4. Multiple non-invasive species: Three (3) or more mature trees of any one or more non-invasive species that are proposed to be removed from the same property or from adjacent property under common ownership.

I. "Public right-of-way" means a strip or area of land owned by the city or other public entity which is used, or reserved or intended for use, as a street, road, alley, driveway, or pedestrian walkway, or to provide public utility service, or any combination thereof, and includes all and any part of the entire width or other area of a designated right-of-way, whether or not such entire width or area is actually used for any of such purposes.

J. "Removal" means the cutting off, or breaking off, the canopy of a tree. This includes leaving the trunk(s) or complete removal of the tree trunk to below ground.

K. "Serial removal" means removal of trees by separate permits within a 1 year period of each other.

L. "Severe trimming" means the removal of more than fifty percent (50%) of the foliage crown or more than thirty percent (30%) of the height of a tree.

M. "Shrub" means a bushy, woody plant, usually with several permanent stems, and usually not over fifteen (15) feet in height at maturity. The community development director shall have the authority to determine whether any specific woody plant shall be considered a tree or a shrub.

N. "Size" means the measurement of a tree in circumference at a height of twenty-four (24) inches above grade immediately surrounding the tree. For multi-trunked trees, the measurement shall be taken collectively for the trunks.

O. "Tree" means a woody perennial plant characterized by having a main stem or trunk, or a multi-stemmed trunk system with a more or less definitely formed crown, and is usually over fifteen (15) feet high at maturity.

(Ord. No. 638, § 2, 10-3-19)

It is unlawful for any person to remove or severely trim, or cause to be removed or severely trimmed, any tree that is not specifically exempted in Section 12.12.030.B, except as provided in this section. This section shall apply to trees whether alive or dead. Such activities shall also comply with federal and state law protecting nesting or migratory birds as provided in the federal Migratory Bird Treaty Act and the California Fish and Wildlife Code, Section 3503 and following, as amended.

A. Notice required-Severe trimming or removal of non-protected mature trees: Any person or that person's agent (such as a landscaper or tree trimmer) must provide written notice to, and in a form prescribed by, the director at least seven (7) calendar days prior to the following proposed actions:

1. Severe trimming of a protected tree or a non-protected mature tree. Notwithstanding the notice to the city, the property owner shall be responsible for the health of the tree and if trimming results in the death of the tree, the property owner shall become subject to the tree removal provisions of this chapter.

2. Removal of a non-protected mature tree. Following notice to the director, no more than two (2) non-protected mature trees may be removed in any consecutive 12 month period.

B. Permit required-Protected tree removal: Removal of a protected tree or removal of three (3) or more non-protected mature trees in a consecutive twelve (12) month period shall require submitting an application and a discretionary tree removal permit by the director. The director shall have the authority to determine whether a plant requires a permit for removal, such as in making the distinction between a multi-trunked tree or a shrub and measurement of tree size in unusual cases.

1. Content of application: The application shall include the following:

a. The species, size and location of each tree to be removed, and the reason for removal. The application shall be accompanied by a processing fee in such amount as may be established from time to time by resolution of the city council.

b. The director may, at the sole expense of the applicant, require the applicant to furnish a written report, from an independent and qualified arborist approved by the city, documenting the health of the tree.

c. A tree planting plan, which shall include the species, size and location of replacement tree(s) and a schedule for planting.

d. Such other information that the director deems necessary in order to make an informed decision whether to grant or deny the permit.

2. Findings for granting a permit: The director's granting a permit for removal of a tree or trees shall be based on at least one of the following findings:

a. The tree is dead or is diseased such that it poses an imminent danger of falling or dropping limbs.

b. The tree is in close proximity to a structure, or would be in close proximity following city-approved construction, such as a building, retaining wall, utilities, etc., such that it would pose a likelihood of damage to such structures.

c. That removal of the tree is necessary for good forestry practices, due to such factors as crowding with other trees or the spread of pests or pathogens.

d. The tree poses a risk to the property due to unusual site conditions or fire hazard.

e. The tree unreasonably interferes with the economic or other enjoyment of the property.

3. Decision on the application and notification: Once the director determines the application is complete, the director shall either grant or deny the application.

a. Notice: If the director grants the permit, the director shall mail a notice to the property owner and to the property owner(s) within three hundred (300) feet of the subject property. The notice will generally describe the approved action, including identification and location of the tree. If the application is denied, the director shall mail the denial to the property owner. The notice shall also advise the property owner and the adjacent property owners (if the permit has been granted) that the decision may be appealed to city manager within seven (7) calendar days from the mailing date of the notice.

b. Expiration: A tree removal permit shall expire six (6) months following the effective date of the permit. For good cause shown, the director may grant an extension upon written request received prior to the expiration of the permit.

4. Standard conditions: Standard conditions of approval in connection with the granting of a permit are provided below. Additional conditions may be applied at the director's discretion.

a. Replacement trees shall be required to be planted on the subject property at the property owner's expense in compliance with the following:

i. Replacement trees shall be on at least a 1:1 basis.

ii. Replacement size shall be of a standard fifteen (15) gallon nursery container, or larger.

iii. The replacement species and location shall be approved by the director prior to planting. Where consistent with the context of the site, the design size of the replacement should be similar to that being removed. Consideration is also to be given to placement of trees and species, such that they would not impede fire apparatus access as they mature and avoidance of trees that pose a fire risk due to high oil content.

iv. Replacement trees are generally to be planted within ninety (90) days of removal. The director may allow deferment of the planting of replacement trees upon written request. Such deferments would typically be to allow trees to be planted at the optimum time of the year for healthy establishment, or where the planned replacements are part of a larger landscape replacement program.

b. The foregoing conditions are considered minimal. Where a large protected tree is to be removed, or where the site has, or will be, largely denuded of landscaping, the director may require re-planting on more than a 1:1 basis, and/or require a larger tree replacement size.

c. The director may require that a tree stump be removed to at or below ground level, based on such factors as visibility or a tripping hazard.

d. Noise from removal and trimming activities shall comply with the Noise Ordinance as provided in Chapter 8.28 of this code.

e. All removal and severe trimming activities shall comply with applicable federal and state provisions protecting nesting or migratory birds as provided in the federal Migratory Bird Treaty Act and the California Fish and Wildlife Code, Section 3503 and following, as amended.

5. Emergency approval: if the condition of a protected tree presents an immediate hazard to life or property, it may be removed without the foregoing notice and permit procedures, provided, however, thereafter the Director shall have authority to impose on the property owner the standard conditions of approval provided in Section 12.12.050.B.4.

6. Exceptions. Upon written request, the director may approve the following exceptions to on-site tree replacement:

a. In-lieu payment: Imposition of an in-lieu payment rather than replacement planting on-site, to fund planting of a tree elsewhere in the city. The amount of the in-lieu fee shall be based on the cost for the city to plant and maintain the equivalent tree for at least one year, with such cost calculated by the director at the time of the request.

b. Off-site planting: Planting of an equivalent tree elsewhere within the city, in lieu of on-site planting. The tree species, size, and location shall be determined by the director.

c. Financial hardship: Any person who is financially unable to comply with the tree planting or in-lieu fee requirements may submit to the Director a written request for a hardship waiver along with supporting documents, demonstrating to the satisfaction of the Director the person's financial inability to comply. Financial inability can be established by showing such conditions as, that the applicant has qualified, or would be qualified, for participation in a public or private assistance program available only to persons having low or very low income, such as subsidized housing, food stamps, SSI, Medi-Cal, or California LifeLine. Such waiver does not relieve the applicant from the requirement to provide required documentation in support of the tree removal permit application.

(Ord. No. 638, § 2, 10-3-19)

A. A decision of the director either to approve or deny a tree removal permit may be appealed to the city manager within the seven (7) calendar days of the date of the notice approving or denying the permit by filing a notice of appeal with the city clerk. The notice of appeal shall be accompanied by a filing fee in such amount as established from time to time by resolution of the city council.

B. The city manager shall conduct a review of the application and may affirm, reverse or modify the decision of the director, or refer the matter to the director for such further consideration as may be directed by the city manager.

(Ord. No. 638, § 2, 10-3-19)

A. Trees located on private property that encroach into the public right-of-way shall be maintained or removed at the expense of the property owner, as may be required by the city engineer. Any acts of maintenance which may be performed by the city on such trees, regardless of the frequency of such actions, shall not constitute an assumption by the city of responsibility for regular maintenance nor an assumption of any liability for the condition thereof.

B. No person shall plant or maintain any tree which (i) creates a dangerous condition, hazard or unreasonably interferes with the public's use of any public street, sidewalk, or other public right-of-way, or (ii) causes damage or threat of damage to any public facilities constructed or installed within the public right-of-way. Additionally, trees planted near driveways, streets, or other fire department access roads shall be maintained such that they do not reduce the required access width or height.

C. The existence of any such condition identified in subsection B of this section is hereby declared to constitute a public nuisance. Upon a determination by the city engineer that any such condition exists, the city engineer may serve upon the property owner a notice to perform corrective work in the manner and within the time as may be specified in the notice, and upon any failure or refusal by the property owner to perform the corrective work, the city engineer may initiate proceedings to abate the nuisance in the manner provided by law and to charge all abatement costs to the property owner.

(Ord. No. 638, § 2, 10-3-19)

A. The violation of any provision of this chapter is hereby declared to be unlawful and shall constitute an infraction and a public nuisance, punishable by the fines, penalties and enforcement provisions set forth in Chapters 1.14, 1.16 and 1.18 of this code.

B. In addition to any other penalties prescribed by law for an infraction offense, any person unlawfully removing or destroying a protected tree may be penalized as follows:

1. Replacing the unlawfully removed or destroyed tree with a new tree as similar thereto as reasonably feasible, or if such replacement is not feasible because of the size or age of the removed tree, with such number of similar trees as will, to the extent reasonably possible, mitigate the loss of aesthetic quality and environmental benefit caused by the unlawful removal or destruction, as determined by the Director. All such replacement trees shall be maintained by the property owner under a five (5) year maintenance agreement with the city. The city may require that a bond or other security satisfactory to the city be posted to guaranty the performance of the owner's obligations under the maintenance agreement.

2. In addition to any other penalty that may be imposed for violation of this chapter, the violator may be charged a fine in an amount equal to the value of the unlawfully removed or destroyed tree, as determined by the Director, based upon the opinion by a qualified arborist or other evidence of value satisfactory to the director.

(Ord. No. 638, § 2, 10-3-19)