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Ordinance 2018-15ORDINANCE NO.2018-15 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING THE GILROY CITY CODE BY ADDING A NEW SECTION 30.38.270 ENTITLED "PROTECTED TREE REMOVAL" WHEREAS, Gilroy City Code, Article 30, Section 30.38 pertains to the removal of significant trees on private property; and WHEREAS, the City recognizes that existing and future trees and tree communities located in the city are a valuable and distinctive resource and that they augment the economic base of the city through encouragement of tourism and enhancement of the living environment; and WHEREAS, the removal of significant trees and diminishing of tree communities reduces property values and the scenic beauty and attractiveness of the city to residents and visitors; and WHEREAS, the City Council of the City of Gilroy has considered the zoning code amendment request (Z 16-05), in accordance with the Gilroy Zoning Ordinance, and other applicable standards and regulations; and WHEREAS, the Planning Commission of the City of Gilroy held noticed public hearings on February 1, and September 6, 2018 to consider the request and reviewed written materials and oral comments related to the proposed code amendments, and recommended approval of the ordinance; and WHEREAS, the City Council of the City of Gilroy held noticed public hearings on March 5, and October 15, 2018 to consider the request and reviewed written materials and oral comments related to the proposed code amendments, and recommended approval of the ordinance; and WHEREAS, the subject ordinance amendment is covered under Section 15308 of the California Environmental Quality Act (CEQA) Guidelines as an action by a regulatory agency for protection of the environment; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I The Gilroy City Code, Chapter 30, Article 38 is hereby amended to add Section 30.38.270 Protected Tree Removal relating to the removal of significant trees on private property. 30.38.270 Protected Tree Removal ORDINANCE NO.2018-15 (a) Purpose: The City recognizes that existing and future trees and tree communities located in the city are a valuable and distinctive resource. These trees and tree communities augment the economic base of the city through encouragement of tourism and enhancement of the living environment. The removal of Protected Trees and diminishing of tree communities would reduce property values and the scenic beauty and attractiveness of the city to residents and visitors. In order to protect this resource, it is the intent of this section to regulate the removal or destruction of Protected Trees and tree communities on private properly within the city. (b) Definitions: (1) Community of Protected Trees. Any grouping of Protected Trees which are ecologically or aesthetically related to each other such that the loss of several of them would cause a protected ecological, aesthetic or environmental impact in the immediate area, as determined by a certified arborist. In sections (d), (e), (g), and (h) of this ordinance, the term "tree" shall refer to each and every tree in the Community of Protected Trees that is proposed for removal. (2) Heritage Tree. A tree of any species with a single trunk of 90 inches in circumference or more at a point four and one half feet (4 112') above the ground or with multiple trunks, two of which collectively measure 72 inches in circumference or more at a point four and one half feet (4112') above the ground. (3) Indigenous Tree. A tree which is native to the Gilroy region, including oaks (all types), California Bay (Umbellularia californica), Big Leaf Maple (Acer macrophyllum), Madrone (Arbutus menziesii), California Sycamore (Platanus racemosa), California Buckeye (Aesculus californica) and Alder (Alms glutinosa). (4) Protected Tree. Any indigenous tree characterized by having a single trunk of thirty-eight inches (38") in circumference or more at a point four and one half feet (4112') above the ground. Nonindigenous tree species and orchards (including individual fruit and nut trees) are exempt from this definition for the purpose of this section. (5) Tree. 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 ten feet high at maturity. This definition shall not include trees planted, grown and held for sale by licensed nurseries or the first removal or transplanting of such trees pursuant to and as a part of operation of a licensed nursery business. (c) Permit Required: It is unlawful for any person to cut down, remove, poison or otherwise damage, kill or destroy or cause to be removed any of the following on any private property without first securing a permit as provided in this section: (1) A Protected Tree (2) Greater than 25% of the trees within the outermost dripline of a Community of Protected Trees (3) A Heritage Tree A separate tree removal permit shall not be required for projects which have been approved through a discretionary process by the Planning Division, Planning Commission or City Council and the 2 ORDINANCE NO.2018-15 removal of Protected Trees or Community of trees were reviewed to ensure compliance with all requirements of this section and authorized by that approval. Trimming, removal and other activities related to trees in the public right of way are regulated by Section 26 of the Gilroy City Code. (d) Application: Any person desiring to cut down, remove, destroy or cause to be removed any Protected Tree, Community of Protected Trees, or Heritage Tree shall apply to the Planning Division for a tree removal permit on forms provided by the Division. The application shall include information to describe and justify the removal request and a report from an arborist certified by the International Society of Aboriculture (ISA) or other equivalent organization acceptable to the Planning Manager. The aborist report shall include all of the following, unless otherwise approved by the Planning Manager: • Site plan showing location of the tree (include buildings, driveways, etc.) • Clear pictures of the tree indicating location, details signs of failure or disease • Description of species of the tree • Estimated height of the tree • Circumference or diameter at breast height of the tree • Discussion of the general health of the tree • Value of the tree according to the ISA tree valuation formula • Discussion of the tree's risk • Discussion of why the tree cannot be saved, including consideration of the following techniques: — Discussion of risk management pruning — Discussion of installation of structural support system — Discussion of improving site conditions/cultural conditions — Discussion of implementing integrated pest management programs Description of the method to be used for removal of the tree Reason for removal of the tree • Proposed replacement tree, including species, size, location. (e) Public Notice: The applicant shall cause a notice of the proposed removal to be posted on the affected tree and in at least two conspicuous locations on the site clearly visible to and readable from public property on a form provided by the Planning Division. The notices shall be a minimum of 8.5 x 11 inches in size. In addition, the notice shall be mailed to the owners of record of all properties which are immediately adjacent to and directly across the street from the properly on which the tree is located. The notice shall include the application number, a description of the proposal, including the location of the tree to be removed, contact information for the Planning Division from which additional information may be obtained and the final date for receipt of comments. A minimum of 10 days from the date of posting shall be given for comments to be received. No action shall be taken on any application until the applicant has filed an affidavit that such posting has been accomplished and the review period has expired. Emergency situations, as described below, are not subject to this provision. (f) Application Review and Approval: The Planning Division shall review the application for removal of Protected Tree, Community of Protected Trees or Heritage Tree and shall determine on 3 ORDINANCE NO.2018-15 the basis of the information provided and the findings listed in Section (g), below whether to approve, approve with conditions or deny the request. (g) In order to approve an application for tree removal, the following findings must be made: (1) At least one of the following findings must be made: A. The tree is dead, diseased or in danger of falling B. The tree is determined to be an immediate threat to life or property C. The tree is determined to be causing damage or reasonably expected to cause damage to existing buildings or interfere with utility services D. The retention of the tree restricts the economic enjoyment of the property or creates an unusual hardship for the property owner by severely limiting the use of the property in a manner not typically experienced by owners of similarly situated properties, and the applicant has demonstrated to the satisfaction of the Community Development Director that there are no reasonable alternatives to preserve the tree. E. Retention of the tree would result in reduction of the permissible building envelope by more than twenty-five (25) percent, and (2) None of the tree management techniques referenced in Section (d), above are deemed feasible to save the tree. In granting any permit pursuant to this section, the Community Development Director may attach reasonable conditions to ensure compliance with the intent and purpose of the section including, but not limited to planting of replacement trees, mitigation of visual impacts and control of erosion. (h) Replacement: Any tree approved for removal under this section shall be replaced. Replacement trees shall be of the same species as the tree that was removed unless otherwise approved by the Community Development Director. Replacement tree shall be planted on the same site as the removed tree; however, if the site is inadequate in size to accommodate the replacement tree , the replacement tree may be planted on public property with the approval of the Director of Public Works. Alternatively, the Director of Public Works, at his/her discretion, may accept an in lieu payment equal to the value of the replacement trees required by Table 1, below. The in lieu payment shall include funds sufficient for the care of the replacement tree during their establishment period as determined by the Director of Public Works. The number and size of replacement trees shall be based on the number and size of trees approved for removal, as indicated in Table 1, below. If the tree being replaced is a tree that was required as a part of an approved Landscaping Plan, the replacement species must be consistent with the Landscaping Plan. Otherwise, the replacement tree may be of any species included on the City's Master Tree Planting Plan. Table 1 REPLACEMENT TREE REQUIREMENTS Trunk Size of Removed Tree (measured at 4112 feet above grade) 4 Replacement Ratio Required (per tree removed) ORDINANCE NO.2018-15 Circumference Number of Minimum Size (inches) replacement trees 38 to 75 2 24 inch box Greater than 75 2 36 inch box Heritage Trees 2 48 inch box If a mitigation measure for removal of a Protected Tree, Community of Protected Trees or a Heritage Tree contained in a certified environmental document requires greater numbers or size of replacement trees than specified in Table 1, above, that requirement shall supercede the requirements of this Section. (i) Emergency Situations: In emergency situations caused by the hazardous or dangerous condition of a tree that poses an immediate threat to the safety of life or property, the minimum necessary actions may be taken to reduce or eliminate the hazard without complying with the other provisions of this Section, except that the person responsible for actions taken to reduce the hazard or to remove the tree shall report such action to the Community Development Department within five working days of that action. Photographs thoroughly documenting the hazardous or dangerous condition of the tree shall be taken prior to any action to reduce the immediate threat. A Tree Removal Permit, as specified in this ordinance, shall be submitted prior to removal of the tree. The required arborist report shall document the conditions that warrant removal of the tree, including the photographs referenced above. 0) Appeal. Anyone so desiring may appeal the decision of the Community Development Director by written request to the Planning Commission and payment of the appeal fee within twenty (20) days after the date of the decision of the Community Development Director. (k) Enforcement. — Remedies for Violation: In addition to all other civil remedies set forth in this code or otherwise provided by law, the following remedies shall be available to the city for violation of this section: (1) Administrative Penalties. Whenever an enforcement officer charged with the enforcement of this code determines that a violation of this section has occurred, the enforcement officer shall have the authority to issue an administrative citation to any person, firm, or corporation responsible for causing, committing, allowing, or maintaining the violation, pursuant to Chapter 6A of this code, and in accordance with the notice requirements and hearing procedure contained therein. The administrative citation shall impose a penalty in an amount set forth in the schedule of penalties established by resolution of the city council. (2) Civil Penalties. As part of a civil action brought by the city, a court may assess against any person who causes, commits, allows, or maintains a violation of any provision of this section a civil penalty in an amount not to exceed five thousand dollars ($5,000.00) per violation. 5 ORDINANCE NO.2018-15 (3) Injunctive Relief. Any violation of this section shall constitute a public nuisance, and a civil action may be commenced to abate, enjoin, or otherwise compel the cessation of such violation. Summary abatement of any violation of this section shall be at the expense of the person, firm, or corporation causing, committing, allowing, or maintaining the violation. The city may make the expense of abatement a lien against the property on which it is maintained and a personal obligation against the property owner. (4) Costs. To the extent the city prosecutes a violation of this section through a nuisance abatement action, the prevailing party shall be entitled to reasonable attorneys' fees, and the city if it prevails shall be entitled to all costs of investigation and preparation for trial, the costs of trial, reasonable expenses including overhead and administrative costs incurred in abating the violation and/or in prosecuting the action. In all other civil actions brought pursuant to this section in which the city prevails, the court shall award to the city reasonable attorneys' fees." SECTION II If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise void or invalid by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, subdivision, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional. SECTION III Pursuant to section 608 of the Charter of the City of Gilroy, this ordinance shall be in full force and effect thirty (30) days from and after the date it is adopted. PASSED AND ADOPTED this 5`h day of November, 2018, by the following roll call vote: AYES: COUNCILMEMBERS: BLANKLEY, BRACCO, HARNEY, LEROE- MUNOZ, TOVAR, TUCKER and VELASCO NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE j Roland Velasco, Mayor ORDINANCE NO.2018-15 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2018-15 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 5t' day of November, 2018, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 6t' day of November, 2018. �7juawna 1'1GG1J, Lvuxk%- City Clerk of the City of Gilroy (Seal)