Fairfax Municipal Code Ch. 8.36 Trees

The town derives much of its character and beauty from its large trees and natural setting. Significant portions of the town are forested with redwood, oak, bay, madrone, Douglas fir, pine and other native tree species. The preservation of these trees enhances the town's natural scenic beauty and enhances the quality of the community. In addition, these trees help prevent the erosion of topsoil, protect against flood and landslides, reduce carbon dioxide, counteract the pollutants in the air, create wildlife habitat, maintain the climatic balance, and decrease wind velocities. Therefore, it is necessary for the health and welfare of the citizens of the town to enact regulations controlling removal and preservation of trees within the town.

(Ord. 743, passed 7-1-2009)

For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

BREAST HEIGHT. Four and one-half feet above lowest grade. All circumference measurements shall be taken at Breast Height.

CIRCUMFERENCE BREAST HEIGHT. The circumference of a tree at four and one-half feet above lowest grade at the base of a tree.

COMMITTEE. The Tree Advisory Committee.

DIAMETER BREAST HEIGHT. The diameter of a tree trunk at four and one-half feet above the lowest grade at the base of the tree.

DIRECTOR. The Director of Planning and Building Services, or, in his or her absence, another member of the Planning and Building Services Department as designated by the Town Manager.

EMERGENCY. An immediate threat to life or an immediate and significant threat to property.

HERITAGE TREES. Significant, locally native tree species that are critical to urban and wildland forest habitats.

Heritage trees include the following:

QUALIFIED ARBORIST. A Certified Arborist, a Certified Urban Forester, a Registered Consulting Arborist, or a Registered Professional Forester (RPF). Arborists must be certified by the International Society of Arborists (ISA). A Qualified Arborist must have a Fairfax Business License and be insured.

SPECIMEN TREE. Trees that, while not heritage trees, nonetheless make a significant aesthetic or environmental contribution to their immediate surroundings. SPECIMEN TREES can be undesirable tree species.

TOWN. The Town of Fairfax.

TREE. Any woody perennial plant characterized by having one or more trunks, any one of which has a diameter of four inches (circumference of 12 inches) or more, measured at four and one-half feet above existing lowest grade at the base of the tree.

TREE ALTERATION. Actions taken by cutting or pruning any tree (branches, trunks, roots), or by filling, surfacing, grading, compacting or changing the drainage pattern of the soil around any tree in a manner that threatens to diminish the vigor of the tree; provided that, as used in this chapter, the term ALTERATION does not include:

(1) Normal seasonal trimming, shaping, thinning or pruning of a tree necessary to its health and growth, and within national pruning standards as defined in the ANSI 300A Standards and by the International Society of Arboriculture pruning standards;

(2) Trimming, pruning or clearance of tree branches from lines of any public utility necessary to the maintenance of the lines; and

(3) Trimming, clearing or pruning by the Director of Public Works of any tree necessary for:

(a) The clearance of streets for pedestrian or vehicular traffic; or

(b) Compliance with fire, building and wildland urban interface codes as adopted by the town.

(4) Trimming, clearing or pruning required by the fire department to meet fire or wildland urban interface code requirements as adopted by the town.

TREE REMOVAL. Complete removal of a tree or any action resulting in the death of a tree or permanent damage to its health, or removal of more than one-fourth of the tree's foliage in any 12-month period.

UNDESIRABLE TREE SPECIES. Tree species that cannot be classified as heritage trees regardless of size due to their rapid growth (three feet per year) or their invasive, structurally hazardous, or flammable nature.

UNDESIRABLE TREES SPECIES. Include, but are not limited to, the following:

Acacia Trees (Acacia spp.)

Black Cottonwood (Populus trichocarpa)

Blue Gum Eucalyptus (Eucalyptus globulus)

Fremont's Cottonwood (Populus fremontii)

Liquidambar (Liquidambar styracflua)

Lombardy Poplar (Populus nigra 'italica')

Monterey Pine (Pinus radiata)

Monterey Cypress (Cupressus macrocarpa)

Pines (Pinus spp.)

Princess Tree (Paulownia tomentosa )

Privet (Ligustrum japonica)

(Ord. 743, passed 7-1-2009)

(A) The Tree Advisory Committee shall consist of one member of the Parks and Recreation Commission, one member of the Planning Commission, and one member of the Open Space Committee to be selected by their respective bodies, and two at-large members to be appointed by the Town Council; provided, however, the Town Council may appoint additional at-large members to serve at the pleasure of the Council in the event one or more of the above-referenced bodies do(es) not select one of its members to serve on the Tree Advisory Committee within 30 days of a vacancy or other failure to appoint a member. Should one of the above-referenced bodies wish to appoint a member after the Council has appointed the additional at-large member, the appointment shall be made pursuant to the Council's adopted Committee Interview and Appointment policy. Terms of all at-large members of the Tree Committee shall be established by the Town Council by resolution.

(B) The Tree Committee shall receive subdivision or development project applications that propose tree removals or alterations in the same manner that the town routes application to other affected agencies. The Tree Committee will provide recommendations to the decision-making body on the applications within 30 days.

(Ord. 743, passed 7-1-2009; Am. Ord. 789, passed 5-6-2015; Am. Ord. 822, passed 11-7-2018; Am. Ord. 850, passed 2-3-2021)

(A) It is unlawful to remove or alter any tree without a permit except as provided in this chapter.

(B) The Director may grant a permit ministerially where the Director determines that one of the following conditions exists:

(1) The tree to be removed is dead or extremely diseased. The Director may require that the applicant provide an analysis by a Qualified Arborist to support this determination.

(2) A public utility company proposes removing or altering a tree that it has determined has or will have an adverse effect on utilities within the foreseeable future.

(3) The tree is of an undesirable species and has been deemed a fire hazard by the Fire Department.

(C) Any interested party may appeal determinations of the Director pursuant to this section to the Committee.

(Ord. 743, passed 7-1-2009)

(A) Any person or entity whatever, including the town, or agent or employee of any such person, desiring to remove or alter one or more trees on any parcel in the town, shall apply, in writing, to the Director for permission to remove or alter the particular tree or trees. The application shall describe the number, location, and species of the tree(s) to be removed or altered and a brief statement of the reason for removal or alteration, as well as such other pertinent information as required by the Director. The application shall be accompanied by the applicable filing fee as set by resolution of the Town Council, and shall be submitted to the Director, who will then submit it to the Committee. The Director shall inform the applicant of the date of the Committee hearing.

(B) At the time of submitting the application to the Director, the applicant shall clearly mark each tree to be considered for removal with a bright colored ribbon. Where applicable and feasible, the perimeter outline of proposed buildings, and all underground utilities, drainage facilities, areas to be graded and retaining walls, shall be staked on the building site. Notice shall be posted on the property pursuant to §8.36.055 of this chapter. The Committee may inspect the premises. Refusal to allow the inspection of the premises may result in denial of the permit.

(Ord. 743, passed 7-1-2009)

(A) All trees for which a permit is requested shall be tagged with orange ribbon a minimum of ten days prior to the meeting date.

(B) The applicant shall post a notice, provided by the Planning and Building Services Department, of the intent to alter or remove the marked tree(s). The notice shall be displayed in a prominent location visible along the frontage of the affected property.

(C) A public notice of the Committee hearing date and time, including a list of the tree removal requests to be reviewed, shall be posted at least ten days prior to the hearing in at least three public places within the town, including, but not limited to, the bulletin board at Town Hall, the bulletin board at the Fairfax Women's Club and the bulletin board at the Fairfax Post Office.

(Ord. 743, passed 7-1-2009)

(A) The Committee may require the applicant to submit his or her application to a Qualified Arborist designated by the town for a report and recommendation. The applicant shall bear all expenses in conjunction with this report. If the Committee reasonably determines that the Qualified Arborist report is not credible, the Committee may require that the applicant submit his or her application and Qualified Arborist report, at the town's expense, for peer review by an additional Qualified Arborist selected by the Committee. The Committee may also request that the applicant provide computer generated simulations of the potential impacts of the proposed tree removal or plantings.

(B) After reviewing the application and accompanying materials and inspecting the premises, the Committee shall grant or deny the permit based upon the following considerations:

(1) Whether the alteration or removal of the tree(s) is necessary to protect the public health and safety and prevent damage to property. The Committee may consider the condition of the tree(s) with respect to disease, danger of structural failure, potential fire hazards, and proximity to existing or proposed structures, and whether the alteration or removal of the tree(s) will prevent or correct damage to property or infrastructure. The Committee should also consider whether the alteration or removal of the tree(s) is necessary in order to prevent the obstruction or interference with public utility facilities, sanitary sewer facilities, storm drains, water supply facilities, or watercourses.

(2) The character of the surrounding neighborhood and the effect of the proposed tree alteration or removal upon aesthetics, privacy, shade, and property values in the area. The Committee may consider whether the over-all tree density and canopy cover is consistent with the existing character of the town, or whether the tree has matured to such an extent that it is determined to be out of scale with adjacent structures and utilities, or other landscape features.

(3) Whether the tree is a heritage tree, specimen tree, undesirable tree, or other species.

(4) Whether the proposed tree alteration or removal is necessary to allow the owner to reasonably develop and use the subject property. The Committee may consider whether reasonable revisions to a proposed project would allow an owner to reasonably develop and use the subject property without requiring removal or alteration of a healthy heritage tree or multiple trees. Where the Committee determines that the tree alteration or removal is necessary to allow reasonable development of the property, the approval of the tree permit shall be conditioned on the issuance of all necessary approvals from the Planning Commission and Town Council.

(5) The topography of the land and whether the tree alteration or removal will have an adverse effect on erosion, soil retention, and the diversion or increased flow of surface water. The Committee may consider whether adequate provisions to avoid these impacts have been made.

(6) Whether the proposed tree alteration or removal would have a detrimental effect on the health of surrounding trees, or whether the proposed action would enhance the health of the subject tree or adjacent trees.

(7) Where tree alteration is proposed, whether the alteration would harm or diminish the vigor of the tree.

(C) The Director shall grant or deny the permit based on the findings and direction of the Committee.

(D) Reasonable conditions of approval may be attached to any tree removal permit including, but not limited to, the replacement of removed trees. In general, removed trees shall be replaced at a minimum ratio of 1:1. The Tree Committee shall have the authority to specify the ratio, where necessary after considering of any fire hazard risk. The site or sites for replacement may be specified by the Committee. Replacement trees shall be of a reasonable size as determined by the Committee based on the recommendation. Drought tolerant, native species that are not susceptible to Sudden Oak Death Syndrome shall be preferred as replacement trees. Security and maintenance measures may be required in order to ensure the successful establishment of replacement trees. Notwithstanding this section, the Committee may authorize the planting of a lesser number of trees of a greater size where this would further the purposes of this chapter.

(E) Approval of a tree permit by the Committee shall not constitute approval of project or the issuance of a permit for building or grading.

(Ord. 743, passed 7-1-2009)

A report by a Qualified Arborist, as described in § 8.36.060, shall:

(A) Describe the tree(s) to be altered or removed, including species, height, diameter Breast Height, and approximate age.

(B) Clearly describe and identify any disease or structural defect affecting the tree and any threat or hazard to people or property presented by the tree(s), including, where applicable, a clear description of the threatened structure and the condition(s) of the tree(s) that give rise to the threat.

(C) Discuss what measures could be considered to preserve the tree(s) or mitigate the risk to property and the relative feasibility of such alternatives.

(D) Include a completed Tree Hazard Evaluation Form, as developed by the ISA (International Society of Architects).

(Ord. 743, passed 7-1-2009)

(A) In order to protect trees during construction of a project, and to maximize chances for their subsequent survival, a Tree Protection Plan (hereafter TPP) shall be required for all applications for a tentative map, use permit, variance, design review, encroachment permit, or building permit where proposed construction would be located near any tree for which a tree alteration or removal permit would be required by the provisions of this chapter, whether on the subject property or an adjoining property.

(B) The TPP shall be prepared by a Qualified Arborist. The TPP shall include:

(1) The size, species, state of health, structural condition, crown diameter, and accurate trunk location and architectural structure of all trees within, and directly adjacent to, the proposed development are, including any area where trenching is proposed, whether on the subject property or on adjoining property; and

(2) A description of all proposed measures to ensure the survival of remaining trees throughout the entire development process.

(Ord. 743, passed 7-1-2009)

A subdivider or an applicant for any development permit under Title 17 need not obtain a separate tree removal permit to alter or remove a tree designated as "To Be Removed" on an approved subdivision map (tentative map or parcel map) or other development plan, provided that the tree alteration or removal and a Tree Protection Plan have been reviewed and approved by the decision-making body for the subdivision map or development plan based on the criteria in § 8.36.060(B) and § 8.36.080 of this chapter. The subdivision map or other development plans required by this code shall clearly designate type, size, and location of any tree upon the property that is to be altered or removed. The decision-making body may also require the applicant to submit a report by a Qualified Arborist as provided in § 8.36.060(A).

(Ord. 743, passed 7-1-2009; Am. Ord. 822, passed 11-7-2018)

The determination of the Committee may be appealed to the Town Council pursuant to § 17.020.120. Appeals shall be submitted to the Town Clerk in writing, on the appeal form provided by the Town, within ten days of the Committee determination. The appeal shall state the grounds for the appeal, and shall be accompanied by the filing fee established by resolution of the Town Council.

(Ord. 743, passed 7-1-2009)

No permit issued under this chapter shall be effective until the lapse of time within which an appeal may be taken, or if taken, until final decision thereon.

(Ord. 743, passed 7-1-2009)

Where the condition or location of a tree constitutes an Emergency, the tree may be removed immediately by permission of the Director, by any officer of the Police or Fire Departments, the Director of Public Works, or any member of the Committee. The Director shall give priority of inspection to those requests based on hazard or danger. As soon as reasonably possible, the Director or other officer who received the request shall notify the members of the Committee by e-mail or telephone that the request has been received.

(Ord. 743, passed 7-1-2009)

No person shall plant any tree within or adjacent to any public right-of-way, power line alignment or easement in the town unless and until such tree and its location shall have been first approved by the Committee, and a permit granted therefor, in accordance with the provisions of this section. Any tree that will reach a height greater than 25 feet at maturity shall not be placed within ten feet of utility poles or lines. No undesirable tree, or any of the following trees, may be planted within 15 feet of a public road, curb, sidewalk, utility line, or element of community infrastructure: Coast Redwood (Sequoia sempervirens), Southern magnolia (Magnolia grandiflora), or Fruitless Mulberry (Morus alba).

(Ord. 743, passed 7-1-2009)

(A) The unlawful removal or alteration of a tree is hereby declared to be a public nuisance and may be punishable as a misdemeanor or infraction.

(B) In addition, it shall be a civil violation for a person to knowingly violate this chapter. The Director, at his or her discretion, may immediately issue a citation for this civil violation upon evidence of the violation. There is no requirement of a first warning in order for the Director to issue this citation.

(C) Administrative fine. Each violation of this chapter shall result in a citation with a $1,000 fine.

(D) The Director shall give notice of a violation of this chapter by issuing a citation to any and all responsible persons within 30 days of the receipt of notice of the violation. The citation shall also give notice of the right to request an administrative hearing to challenge the validity of the citation and the time for requesting that hearing.

(Ord. 743, passed 7-1-2009)

(A) Administrative hearing. Any person subject to an Administrative Fine pursuant to § 8.36.140 shall have the right to request an administrative hearing within 45 days of the issuance of a citation for a civil violation of this chapter. To request such a hearing, the person requesting the hearing shall notify the Town Clerk's Office in writing within 45 days of the issuance of the citation.

(B) The Town Clerk's Office shall refer any request for a hearing under § 9.28.050 to a hearing officer appointed by the Town Manager. The hearing officer shall conduct a hearing on the matter within 60 days of the request for the hearing unless one of the parties requests a continuance for good cause. The hearing officer shall render a decision within ten days of the conclusion of the hearing. The hearing officer may, in his or her discretion, permit the fine to be satisfied by the performance of community service.

(C) Appeal from Decision of Hearing Officer. The person upon whom an Administrative Fine is imposed pursuant to § 8.36.140 may appeal the decision of the hearing officer to the Town Council in accordance with Chapter 2.44 of the Town Code.

(D) Appeal to Superior Court. The person upon whom an Administrative Fine is imposed pursuant to § 8.36.140 and whose appeal to the Town Council is denied pursuant to this section may appeal to the Superior Court pursuant to the procedures outlined in Government Code Section 53069.4.

(Ord. 743, passed 7-1-2009)

The amount of an administrative fine shall be deemed a debt owed to the town by the person found in violation of § 8.36.140. Any person owing such fine shall be liable in a civil action brought in the name of the town for recovery of such fine.

(Ord. 743, passed 7-1-2009)