Chapter 13.32

TREE REMOVAL CONTROLS

Sections:

13.32.020 Definitions.

13.32.030 Removal of live tree.

13.32.040 Removal of dead tree.

13.32.041 Removal of unsuitable tree.

• 13.32.045 Presentation of permit on request.

• 13.32.047 Posting of permit.

• 13.32.050 Certified arborist report.

• 13.32.060 Penalty.

• 13.32.070 Permit application.

• 13.32.080 Development permit combined.

• 13.32.090 Review of permit application - General.

• 13.32.095 Review of permit application - Administrative procedures for unsuitable trees.

13.32.100 Permit findings.

It is the purpose of this chapter to promote the health, safety, and welfare of the city by controlling the removal of trees in the city, as trees enhance the scenic beauty of the city, significantly reduce the erosion of topsoil, contribute to increased storm water quality, reduce flood hazards and risks of landslides, increase property values, reduce the cost of construction and maintenance of draining systems through the reduction of flow and the need to divert surface waters, contribute to energy efficiency and the reduction of urban temperatures, serve as windbreaks and are prime oxygen producers and air purification systems. (Prior code § 8930; Ord. 26595.)

Except where the context otherwise requires, the definitions contained in this Section shall govern the construction of this Chapter:

• A. "Certified arborist" means an individual who has demonstrated knowledge and competency of arboriculture through the obtainment of an arborist certification from the International Society of Arboriculture, or its successor organization if that organization no longer exists, or who is a member of the American Society of Consulting Arborists, or its successor organization if that organization no longer exists.

• B. "Dead tree" means a tree that is no longer alive, has been removed beyond repair, or is in an advanced state of decline (where an insufficient amount of live tissue, green leaves, limbs or branches exists to sustain life) and has been determined to be in

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such a state by a certified arborist during a non-dormant or other natural stage of the tree that would minimize the likelihood that the tree would be mistakenly identified as being in such a dead state.

• C. "Director" means the Director of Planning, Building and Code Enforcement of the City of San José or such other person designated by the City Manager to administer and enforce the provisions of this Chapter.

• D. "Dripline" means the area around the base of a tree directly under the canopy cover of the tree and extending out as far as the canopy.

• E. "Hazardous condition" shall mean any tree that is or appears to be: (i) dead; (ii) likely to fall; (iii) seriously diseased; (iv) an obstruction or potential obstruction to pedestrian or vehicular travel in any street; (v) an obstruction or potential obstruction to any traffic signs, traffic controls, streetlights, regulatory sign, or similar type of equipment or sign; or (vi) in a condition that is detrimental to the public health, safety, or general welfare.

• F. "Imminently hazardous condition" shall mean a hazardous condition which presents an immediate threat to the health, safety or general welfare of persons or property and/or the public which requires immediate action to abate.

• G. "Invasive Tree" means any Tree that is both non-native and able to establish on many sites within the South San Francisco Bay Area, grow quickly, and spread to the point of disrupting local plant communities or ecosystems.

• H. "Live tree" means any tree that is not a dead tree.

• I. "Ordinance tree" means a tree defined in this section hereinbelow and whose removal or topping is covered by and subject to the provisions of this Chapter.

• J. "Remove" means eliminate, take away, uproot or destroy. For purposes of this Chapter, "remove" also means taking any action that reasonably and foreseeably will lead to the death of a tree or to permanent significant damage to the health or structural integrity of a tree. Such actions can include, without limitation and by way of example, excessive pruning, cutting, girding, poisoning, or watering of a tree; the unauthorized relocation or transportation of a tree; excessive excavation, alteration, or grading of the soil within the dripline of a tree, or excessively bruising, tearing or breaking the roots, bark, trunk or branches of a tree.

• K. "Topping" means cutting the branches of an ordinance tree in a manner that destroys the existing symmetrical appearance or natural shape of the tree and involves the removal of main lateral branches and leaving the trunk of the tree or major branches of the tree with a stub appearance.

• L. "Tree" means any live or dead woody perennial plant characterized by having a main stem or trunk which measures thirtyeight (38) inches or more in circumference at a height of fifty-four (54) inches above natural grade slope. For purposes of this Chapter, a multi-trunk tree shall be considered a single tree and measurement of that tree shall include the sum of the circumference of the trunks of that tree at a height of fifty-four inches above natural grade slope. "Tree" shall include the plural of that term.

• M. "Unsuitable Tree" means a live tree or dead tree on a lot that is used for a onefamily dwelling as defined in Section 20.200.320, a two-family dwelling as defined in Section 20.200.330 or any other land use as defined in Title 20 of the San José Municipal Code, where the tree is

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not a heritage tree as defined in Section 13.32.140, a candidate for heritage tree status, or a palm tree in the Palm Haven Conservation Area and meets at least one of the following criteria:

1. On any lot used for a one-family dwelling, two-family dwelling, or multi-family dwelling, the part of the tree trunk nearest to the onefamily dwelling, two-family dwelling, or multi-family dwelling including any secondary unit or garage on the same lot is five (5) feet or less from the nearest above-grade part of the one-family dwelling, twofamily dwelling, or multi-family dwelling, including secondary unit or garage; or

2. On any lot, the part of the tree trunk nearest to a below-grade utility pipe or line is five (5) feet or less from the centerline of that below-grade utility pipe, below-grade utility line; or

3. On a lot used for a one-family dwelling or a two-family dwelling, the tree belongs to a species that has been found by the City Council to be uniquely less compatible with the immediate environment because the species is invasive or non-native to the San José region or is susceptible to disease. Such tree species shall be placed on an Unsuitable Tree species list which shall be adopted by the City Council by resolution, which resolution may be amended from time to time to add or delete certain tree species.

nd by the City Council to be uniquely less compatible with the immediate environment because the species is invasive or non-native to the San José region or is susceptible to disease. Such tree species shall be placed on an Unsuitable Tree species list which shall be adopted by the City Council by resolution, which resolution may be amended from time to time to add or delete certain tree species.

4. A Tree on any lot that creates an Imminently Hazardous Condition as evidenced by a report prepared and executed by a certified arborist that is submitted to the Director documenting that the tree creates

an Imminently Hazardous Condition pursuant to the definition set forth in Section 13.32.020 above. (Prior code § 8931; Ords. 21363, 26595, 29195, 30057.)

It shall be unlawful for any person to remove, or cause to be removed, any live tree, as defined in Section 13.32.020, from any private parcel of land in the city unless one of the following conditions exists:

• A. Removal of the tree is required pursuant to the provisions of Chapter 13.28; or

• B. A development permit that allows the removal of the tree has been issued and accepted by the permit applicant pursuant to the provisions of Title 20 of this Municipal Code; or

• C. An amendment to a development permit that allows the removal of the tree has been issued and accepted pursuant to the provisions of Title 20 of this Municipal Code; or

• D. A tree removal permit that allows the removal of that tree has been issued and accepted pursuant to the provisions of this chapter.

(Prior code § 8932; Ords. 21363, 26595.)

It shall be unlawful for any person to remove, or cause to be removed, any dead tree, as defined in Section 13.32.020, from any private parcel of land in the city unless the following conditions exists:

• A. A report prepared and executed by a certified arborist has been submitted to the director upon the director's request documenting that the tree qualifies as a dead tree pursuant to the definition set forth in Section 13.32.020 above; and

• B. Only after the condition set forth in subsection A. has been satisfied, either one of the following additional conditions exists:

  1. A development permit adjustment that allows the removal of the dead

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tree has been issued and accepted by the permit applicant pursuant to the provisions of Title 20 of this Municipal Code; or

2. A tree removal permit that allows the removal of the dead tree has been issued and accepted by the permit applicant pursuant to the provisions of this chapter.

(Ord. 26595.)

It shall be unlawful for any person to remove, or cause to be removed, any Unsuitable Tree, as defined in Section 13.32.020, from any private parcel of land in the City unless a development permit or permit adjustment has been issued pursuant to Title 20 of this Code that allows the tree removal, or a tree removal permit that allows the removal of that Unsuitable Tree has first been issued and accepted by the applicant pursuant to the provisions of this Chapter.

(Ords. 29195, 30057.)

• A. It shall be unlawful for any person to remove or cause to be removed a live tree or dead tree, as defined in Section 13.32.020, from any private parcel of land in the city unless the permit or a copy of the permit is maintained on the site where the tree to be removed is located.

• B. It shall be unlawful for any person to remove or cause to be removed a live tree or dead tree, as defined in Section 13.32.020, from any private parcel of land in the city unless the permit or a copy of the permit can immediately be presented upon request to the director of planning, building, and code enforcement, police officers, and their designee.

• C. It shall be unlawful for any person to engage in any tree removal activity or allow any activity to remove the tree that is the subject of the permit to occur unless and until: (1) the permit or a copy of the permit is located on the site where the subject tree is located, and (2) the

permit or a copy of the permit is readily available for presentation upon request as described in this section.

• (Ord. 27978.)

• A. It shall be unlawful for any person to remove or cause to be removed a live tree or dead tree, as defined in Section 13.32.020, from any private parcel of land in the city unless a copy of the permit is posted on the parcel on which the subject tree is located prior to commencement of and during any actions involving removal of the tree as follows:

  1. The copy of the permit shall be a minimum size of eight and one-half (8.5) by eleven (11.0) inches, posted at each public street frontage within two (2) feet from the public right-of-way, and posted in such a manner that the permit is readable from the public right-of-way; or

  2. If the parcel that is the subject of the permit does not have a public street frontage, a copy of the permit shall be posted at a location where the permit is readable from a common access driveway or roadway.

• B. It shall be unlawful for any person to engage in any tree removal activity or allow any activity to remove the tree that is the subject of the permit to occur unless and until the permit is posted as described in this section.

• (Ord. 27978.)

In addition to the requirement for a certified arborist report pursuant to the provisions of Section 13.32.040, the director may require the applicant to submit a report prepared and executed by a certified arborist whenever the removal of any tree is proposed and the director determines that he or she needs additional information documenting that any or all of the criteria for a tree removal permit clearly exist.

(Ord. 26595.)

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Any person who unlawfully removes or has unlawfully removed a live tree or dead tree, or causes or has caused the unlawful removal of such a tree, shall be subject to any appropriate enforcement action by the city, which action may include without limitation the issuance of an administrative citation and the imposition of an administrative fine in the amount set forth in a schedule of administrative fines set forth by resolution of the city council.

(Ord. 26595.)

• A. Any person, unless required to do so by the provisions of Chapter 13.28, desiring to remove any live tree that is not an unsuitable tree from any private parcel of land in the city, as set forth in Section 13.32.030, shall file a written application on a form provided by the director, setting forth therein, among other things, the number, type, size and location of each tree and the reason for removal of each tree.

• B. Any person, unless required to do so by the provisions of Chapter 13.28, desiring to remove any dead tree that is not an unsuitable tree from any private parcel of land in the city, as set forth in Section 13.32.040, shall file a written application on a form provided by the director, setting forth therein, among other things, the number, type, size and location of each tree, the reason for removal of each tree, and the certified arborist's report assessing the condition of tree and the time frame in which the assessment occurred.

• C. Any person, unless required to do so by the provisions of Chapter 13.28, desiring to remove any unsuitable tree from any private parcel of land in the city, as set forth in Section 13.32.041, shall file a written application on a form provided by the director, setting forth therein, among other things, the number, type,

size and location of each unsuitable tree, and information clearly establishing that the tree qualifies as an unsuitable tree. (Prior code § 8934; Ords. 21363, 26595, 29195.)

The request for a tree removal permit pursuant to the provisions of this chapter may be included as part of an application for a development permit under the provisions of Title 20 of this Municipal Code. Where the request for a tree removal permit is included as a part of a development permit application under Title 20, the development permit may serve as the tree removal permit and be processed under the application, noticing, hearing and appeal provisions applicable to the development permit application, and no separate tree removal permit application and tree removal permit shall be required, so long as all of the substantive provisions and permit processing requirements of this chapter are met as a part of processing that development permit application. (Ord. 26595.)

• A. The provisions of this Section shall apply to tree removal permit applications for trees that are not Unsuitable Trees as defined in Section 13.32.200, subject to the provisions of Section 13.32.095.D below.

• B. The Director shall conduct an investigation on each application for a tree removal permit accepted for filing.

• C. Each such investigation shall include the preparation by the Director of a written tentative decision on the application and the mailing of a copy of the written tentative decision, to: (1) the applicant, and (2) the owners and occupants of property contiguous to the parcel upon which the tree or trees proposed to be removed is or are located or directly across a public street which abuts such parcel.

• D. The written tentative decision shall include instructions for any person desiring to request a hearing to file a request for hearing by the

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date specified in the tentative decision, which date shall be not less than ten (10) calendar days after the tentative decision mailing date.

• E. The applicant shall post a copy of the written tentative decision, including the hearing request instructions, on the parcel on which the subject tree is located as follows:

  1. The copy of the written tentative decision shall be a minimum size of eight and one-half (8.5) by eleven (11.0) inches, posted at each public street frontage within two (2) feet from the public rightof-way, and posted in such a manner that the written tentative decision is readable from the public right-of-way; or

  2. If the parcel that is the subject of the written tentative decision does not have a public street frontage, a copy of the written tentative decision shall be posted at a location where the permit is readable from a common access driveway or roadway.

  3. The applicant shall post the copy of the written tentative decision within five (5) calendar days of the date of mailing of the written tentative decision.

• F. The applicant shall provide written certification to the Director that the tentative written decision and hearing request instructions have remained posted on the subject tree for a period of at least five (5) calendar days.

• G. The Director shall not act upon any tree removal permit application until the time has elapsed for requesting a hearing.

• H. If a request for hearing is filed on or before the date specified in the notice of tentative decision, notice of the time and place of the hearing shall be mailed to: (1) the applicant, postage prepaid at the address shown for such purposes on the application; (2) such owners postage prepaid at their last known address as the same appears upon the last equalized assessment rolls of the County of Santa Clara; (3) such occupants postage prepaid at the address of the parcel on which the said tree or trees to be removed is or are located and at the

l be mailed to: (1) the applicant, postage prepaid at the address shown for such purposes on the application; (2) such owners postage prepaid at their last known address as the same appears upon the last equalized assessment rolls of the County of Santa Clara; (3) such occupants postage prepaid at the address of the parcel on which the said tree or trees to be removed is or are located and at the

address of the parcel directly across the public street which abuts such parcel on which said tree or trees is or are located; and (4) to any other interested person who has requested hearing, as the address shown in their request for hearing. All such notices shall be mailed at least five (5) days before the date on which the applicant, owners, occupants and others requesting a hearing will be heard.

• I. The form of the notices shall be as prescribed by the Director.

• J. As an alternative to the tree removal application process, an applicant may apply for a special use permit. A special use permit application for tree removal shall follow the process set forth in Part 7 of Chapter 20.100 of Title 20 of this Code.

(Ords. 26595, 29195, 30057.)

• A. The director shall review each application for a tree removal permit for an unsuitable tree accepted for filing.

• B. The director may, in the director's sole discretion, approve a tree removal permit for an unsuitable tree.

• C. The director's decision pursuant to this section is an administrative determination and requires no hearing or notice.

• D. The action of the director is final. If the application is denied, nothing in this section shall preclude the applicant from filing, and such applicant may file, an application for a tree removal permit for live trees or dead trees that are not unsuitable trees pursuant to this chapter.

• (Ord. 29195.)

• A. Neither the director nor the planning commission on appeal shall issue a permit for the removal of any tree, other than an unsuitable tree, on any private parcel of land in the city

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unless the director or the commission on appeal makes at least one of the following findings:

1. That the tree affected is of a size, type and condition, and is in such a location in such surroundings, that its removal would not significantly frustrate the purposes of this chapter as set forth in Section 13.32.010; or

2. That the location of the tree with respect to a proposed improvement unreasonably restricts the economic development of the parcel in question; or

3. That the condition of the tree with respect to disease, danger of falling, proximity to an existing or proposed structure, and/or interference with utility services, is such that preservation of the public health or safety requires its removal; or

• B. In connection with an application to remove a dead tree, the director or the planning commission on appeal shall consider whether the subject tree was in any way injured, removed or caused to be injured or removed by the applicant, in addition to the findings required to be set forth pursuant to the provisions hereinabove.

• C. The planning director shall not issue a permit for the removal of an unsuitable tree on any private parcel of land in the city unless the director finds that the tree is an unsuitable tree as defined in Section 13.32.020.

(Prior code § 8935; Ords. 21363, 26595, 29195.)

• A. In taking action on a tree removal permit application, the Director or the Planning Commission on appeal, if applicable, may deny the application or issue a tree removal permit for one or more trees and concurrently deny removal for one or more trees.

• B. The Director or the Planning Commission on appeal, if applicable, may make any permit that they issue subject to such terms, provi-

sions and conditions as they may deem reasonably necessary to secure the general purposes of this Chapter.

• C. The Director or the Planning Commission on appeal, if applicable, shall impose as a condition on the issuance of any permit for the removal of any tree the requirement that a suitable replacement tree or trees as determined by the Director or the Planning Commission on appeal be or cause to be provided, installed and maintained, at no cost to the City: on-site by the permittee; or if on-site replacement is not feasible, at another site within the City of San José in the manner determined by the Director or the Planning Commission on appeal.

• D. The replacement tree requirement set forth in this Section shall be roughly proportionate to the tree replacement needed to alleviate and address the burdens and other impacts created by allowing the removal of the tree or trees under the permit, except that the Director or the Planning Commission on appeal may increase by a reasonable amount the number of replacement trees to be provided, installed and maintained by the permittee, such as increasing the number and/or size of replacement trees, where it is specifically found based upon evidence in the record that the permittee injured or removed or caused the injury or removal of a dead tree that is a subject of the permit without first obtaining a tree removal permit.

• E. On-site tree replacement shall include a requirement that any on-site replacement tree that fails within three years after planting shall be promptly replaced. Off-site replacement shall include similar assurance of longevity of the replacement tree(s).

• (Ords. 26595, 29195, 30057.)

• A. Action of the Director on a tree removal application under this Chapter is an administrative permit not subject to hearing unless re-

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quested in accordance with the provisions of Section 13.32.090 above. If no hearing is requested in accordance with the provisions of Section 13.32.090 above, the Director's decision shall not subject to appeal.

• B. Except for actions of the Director on Unsuitable Trees, any action of the Director after a hearing is held under the provisions of Section 13.32.090 above may be appealed to the Planning Commission by the applicant or by any of the property owners or occupants of the parcels of land adjacent to or across the street from the property upon which the tree or trees proposed for removal are located. The person making the appeal shall do so by filing a written notice of appeal within ten (10) days after notice of such action is mailed to the applicant at the address shown for such purpose on his application and to such owners mentioned in Section 13.32.090 at their last known address as the same appears upon the last equalized assessment rolls of the County and to such occupants mentioned in Section 13.32.090 at the address of the parcel on which the tree or trees to be removed is or are located and at the address of the parcel directly across the public street which abuts such parcel on which said tree or trees is or are located.

• C. Such notice of appeal shall be filed with the Director on a form furnished by the Director. The information and data required to be set forth in the form shall be as prescribed by the Director. The Director may refuse to accept any such notice of appeal unless the notice is signed and all data is set forth and shown as required by the form.

• D. When such notice of appeal has been accepted and filed by the Director, within the time provided, the Director shall, subject to the applicable rules of the Planning Commission, set a date of hearing thereon by the Planning Commission and notify the Planning Commission of such setting. Such date of hearing shall be not less than ten (10) days nor more than sixty (60) days after the notice of appeal was accepted and filed.

• E. The Director shall give notice of the hearing to the appellant or appellants, and the applicant, owners and occupants by mailing same at least five (5) days before the date set for hearing, to the appellant or appellants at the address shown for such purpose on his or their notice of appeal, and to the applicant, owners and occupants at the address to which the Director's action was mailed and said director shall also file with the Planning Commission at its hearing on appeal the application, notice of appeal, the action appealed from, and all other things filed with the Director in connection with the application.

• F. The Planning Commission shall hear all matters on appeal de novo and shall take action within a reasonable time after conclusion of its hearing.

(Prior code § 8936; Ords. 12363, 26595, 29195, 30057.)

For the purpose of safeguarding trees during construction, all of the following conditions shall apply to all such trees except for trees for which a tree removal permit has been issued or which are required to be removed pursuant to Chapter 13.28:

• A. Prior to the issuance of any approval or permit for the construction of any improvement on the building site, all trees on the site shall be inventoried by the owner or contractor as to size (including diameter/circumference), species and location on the lot and the inventory shall be submitted on a topographical map to the director; and

• B. Damage to any tree during construction shall be immediately reported by a person causing the damage, the responsible contractor, or the owner to the director, and the contractor and/or owner shall treat the tree for damage in the manner specified by the city arborist; and

• C. No construction equipment, vehicles or materials shall be stored, parked or standing within the tree dripline; and

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• D. Drains shall be installed according to city specifications so as to avoid harm to trees due to excess watering; and

• E. Wires, signs and other similar items shall not be attached to trees; and

• F. Cutting and filling around the base of trees shall be done only after consultation with the city arborist and then only to the extent authorized by the city arborist; and

• G. No paint thinner, paint, plaster or other liquid or solid excess or waste construction materials or wastewater shall be dumped on the ground or into any grate between the dripline and the base of the tree or uphill from any tree where certain substances might reach the roots through a leaching process; and

• H. Fencing shall be installed outside the canopy of the tree to the dripline unless otherwise directed by the certified arborist to prevent injury to trees making them susceptible to disease causing organisms; and

• I. Wherever cuts or soil disturbances are made in the ground near the roots of trees, appropriate measures shall be taken to prevent exposed soil from drying out and causing damage to tree roots as prescribed in a certified arborist report.

• (Ords. 21362, 26595, 30057.)

• B. Any person who unlawfully vandalizes, grievously mutilates, removes or destroys such a heritage tree shall be subject to any appropriate enforcement action by the city, including without limitation the imposition of an administrative citation with the imposition of a civil penalty in the amount set forth by resolution of the city council for each such tree so vandalized, mutilated, removed or destroyed.

• (Ords. 21362, 26595.)

The failure to post, mail or deliver by personal service any notice required under this chapter or the failure of any person to receive such notice, shall not affect the validity of any proceedings or actions taken by the city or its employees, agents or contractors under this chapter.

(Ords. 21362, 26595.)