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HomeMy WebLinkAbout1996-05-21 City CouncilF TYDGET 1996-98 City of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL Attention:Finance Committee FROM:CITY MANAGER DEPARTMENT: Planning and Community Environment AGENDA DATE: May 21, 1996 CMR:270:96 SUBJECT:CONSIDERATION OF ARBORIST POSITION WITH PLANNING DEPARTMENT REQUEST Include in the 1996/98 Budget a new position in the Department of Planning and Community Environment, Planning Division, with the title "Planning Arborist," contingent upon Council approval of the Tree Protection Ordinance. RECOMMENDATIONS That the Finance Committee recommend to City Council inclusion of a new position, titled "Planning Arborist" in the 1996/98 Budget. BACKGROUND On March 1, 1993, the City Council directed the formation of a Tree Task Force to consider various measures for increasing the City’s ability to protect existing trees and to participate in urban reforestation. The committee eventually recommended a variety of measures to.be taken in order to accomplish the objectives defined by Council. One of those measures was the preparation of a Tree Protection Ordinance, and in August of 1995, the Policy and Services Committee provided direction to the City Attorney to prepare tree protection regulations. A framework for the ordinance was forwarded to Council in December of 1995, - and the draft ordinance was prepared and has been distributed in the community for public review. The process for drafting the ordinance involved Attorneys, Planning and Public Works Department staff, the Tree Task Force, the CIP Design Consultant, and outreach to landscape, design, real estate and arboricultural professionals in the community. CMR:270:96 Page 1 of 4 POLICY IMPLICATIONS The Planning Arborist position is needed in order to professionally and competently administer the proposed Tree Protection Ordinance. While the position, in and of itself, does not represent a shift in City policy, it is an increased commitment of City resources toward the stewardship, education about, and care of trees on private property. It is also intended to support the community and other departments in providing increased stewardship for all trees in the City, including public trees. The position implements the Tree Protection Ordinance and other recommendations of the Tree Task Force. If adopted, the ordinance strengthens current City policy for tree protection and planting on private property. Current policy is found in the ARB Ordinance ( Section 16.48), Site and Design Ordinance (Section 18.64), Zoning Ordinance (Section 18.64), and the Comprehensive Plan, Urban Design Element. DISCUSSION The proposed ordinance will strengthen existing policy by protecting certain trees on private properties that are not now subject to City regulations. In summary, these trees are certain specimen oak trees and others that are self-nominated by property owners as "heritage trees." Those trees that are outside the "building area" on single-family properties and those which will notreduce the "building area" on other properties by greater than 25 percent are to be protected, unless permission is granted to remove them because they are dangerous, dead or constitute a nuisance. In order to administer a Tree Protection Ordinance, additional staff resources are needed. The position requires special education and training, including a degree and professional certification in Arboricultural Sciences. The ordinance, as drafted, is not likely to require the services of a full-time equivalent; however, many other recommendations that have come from the Tree Task Force effort, and from discussions by the Council, can also be implemented through the position. Specifically, this position will be responsible for providing: 1) administration and enforcement of the Tree Protection Ordinance; 2) professional arboricultural assistance to the Building Division for monitoring conditions for tree protection and planting on private property, 3) stewardship and public education in the areas of tree protection and reforestation; 4) liaison and coordination with Boards and Commissions, other departments, volunteer organizations,, community groups and neighborhood organizations; and 5) together with the City Arborist, preparation, administration and upkeep of the Tree Technical Manual. ALTERNATIVES There are several alternatives to creating this position. It should be noted that the number of hours needed to administer the ordinance is unknown. Staff investigated nearby cities to learn what staff were needed to implement their ordinances. Most nearby communities regulate all heritage specimen trees, versus the proposed Palo Alto ordinance which regulates CMR:270:96 Page 2 of 4 only two species of oaks. No comparable ordinance or situation was found in staff’s outreach. Staffbelieves that there is a great need for the arborist expertise in the enforcement of current City regulations pertaining to tree protection and in public education and outreach. Therefore, staff feels that a full time equivalent will be fully committed to work consistent with the Council’s desires for greater emphasis within the City organization on the protection and enhancement of trees. One alternative is to adopt the regulation and utilize a contract arborist to implement it. An advantage of contract personnel is they can be brought in only as they are needed. The disadvantage of contract professionals is that they are not as readily available to the City and public, and they generally require more Division management and administrative time than a permanent employee. Staff could not recommend that the ordinance be adopted and implemented within current resources by shifting responsibilities from one area to another. The ordinance requires reviewing arborist evaluations submitted by property owners. This task requires special education and training not found within the Department of Planning and Community Environment. Adopting regulations without the resources to competently and professionally administer them is not advisable. The staff recommendation to place this position in the Planning Division is to allow optimum coordination with other entitlement process and enforcement activities which now occur for private property owners. FISCAL IMPACT The Planning Arborist position will add one FTE to the 1996/98 budget, and, it is assumed, into future budgets. The full cost of this new position equals $82,063. This cost is comprised of $57,000 for the base salary, $17,213 for benefits, and $7,850 for office and computer equipmen; and a request will be made for an additional $18,500 at mid-year to cover the cost of an additional field vehicle. This late request is because the decision to include the Planning Arborist in the budget and the need for a vehicle was identified after the deadline for newvehicle requests. Until the vehicle can be purchased, the Planning Arborist would conduct field inspections and enforcement from a bicycle, or by using pool cars. ENVIRONMENTAL ASSESSMENT Adopting a budget which includes this new position is not a project under CEQA. STEPS FOLLOWING APPROVAL Should the Finance Committee recommend the position be created, the recommendation will be forwarded to the Council for adoption with the Planning Department Budget. Recruitment for the position will require up to three months and will commence immediately, in order to be timed to occur concurrent with the effective date of the Tree Protection Ordinance. CMR:270:96 Page 3 of 4 ATTACItMENTS Memo from Virginia Warheit to Nancy Lytle titled "Staffing Required to Implement Tree Ordinances in Four Nearby Cities" CC:Historic Resources Board Planning Commission Architectural Review Board Tree Task Force Board of Realtors Chamber of Commerce Association of Arborists PREPARED BY: Nancy Lyle, Chief Planning Official DEPARTMENT HEAD REVIEW: KENNETH R. SCHREIBER Director of Planning and Community Environment CITY MANAGER APPROVAL: Manager CMR:270:96 Page 4 of 4 PLANNING DIVISION Date:October 27, 1995 To:Nancy Lytle From:Virginia Warheit Subject:STAFFING REQUIRED TO IMPLEMENT TREE ORDINANCES IN FOUR NEARBY CITIES Earlier this week I spoke xvith staff members in Redwood City, Mountain View, Sunnyvale and Los Gatos about staffing needs to administer their tree ordinances. All four cities have ordinances that require a permit to cut down trees on private property, with standards that are roughly comparable to what is being considered for the Palo Alto ordinance. In three of the four cities, the ordinance applies to all trees over 12 inches diameter at three or four feet above the ground, 16 inches at 2 feet above the ground in Mountain View, and in some of the cities the ordinance also applies to smaller trees of particular species, on development sites, etc. In general, the conclusion from the information that they provided is that in the two cities most similar to Palo Alto, Mountain View and Los Gatos, the staff estimates that approximately the equivalent of one full-time position is currently assigned to implementing their tree ordinance, with the work shared by several people in two departments. In Sunnyvale and Redwood City, probably less like Palo Alto with regard to the number of trees and community expectations, staff estimate that something more than ½ of a full time position is currently assigned to implementing the tree ordinance, but they described the current implementation of their ordinances as being not as effective or consistent as it should be. It may also be important to note that staff in all four cities identified education and outreach as a very important component in administering the ordinance but none of the cities has currently incorporated this in a systematic way into their implementation program. Following is a summary of the comments of the people I spoke with: VWI:\ARBORIST.MEM Redwood Ci _ty,, Jim Littlefield, Public Worlds Services 780-7482 Primary responsibility for implementation of the ordinance is with Public Works Services, but they work with the Planning Department when the trees are on a development site. The average is about 25 requests for removals per month. No individual is designated to this job, but Mr. Littlefield handles most of them for Public Works. Public Works’ role in ordinance implementation takes about half of his time. Decisions may be appealed to the Parks and Recreation Commission. Planning Department staff handle any appeals and cases that involve development sites. He believes the staffing depends on how aggressively the ordinance is implemented, "would be full time to do a really good job". Education and information to homeoxvners and realtors would be very helpful in implementing the ordinance, but they are presently not doing this. Their efforts would also benefit from better coordination with the Planning Department. Mountain View Steve Gale. Parks Dept.903-6326 Head of the Urban Forestry Sectidn, the Arborist and the Parks Manager and clerical support are all involved in impleme.nting the ordinance, as well as the Planning Department if development is involved. Estimates 225 removal requests per year, some for multiple trees; about 10% are denied. Believes significant trees that should not be removed are being saved by the ordinance. Decision to remove is posted on the tree for 10 days, and may be appealed to the Heritage Tree Board. They are now in the process of revising and simplifying their ordinance standards which is a sensitive and time consuming process. Believes that an equivalent of one full time position is a good estimate of the time required to implement the ordinance. He commented that our proposed location of the arborist position in the Planning Department would be a good place for it, given the close coordination required with Planning. He believes there are people out there who have the process/planning skills and are also qualified arborists to do the job; salary would probably need to be a minimum of mid- $50,000 to get those skills. He would be glad to sit on an interview panel for selecting a candidate. Recommends advertising the position in the publication of the Western Chapter of ISA and parks and recreation publications. Sunn)wale Fred Bell, Planning Dept. Loren Wiser, Public Works Dept. (408) 730-7444 Implementation of the tree ordinance is shared between Planning and Public Works. Applications are logged in by the Planning Department, routed to the Arborist in Public Works who makes a site visit and sends his recommendation to the Planning Department which issues the decision, usually taking the recommendation of the Arborist. Trees to be removed as part of a development project are handled by a separate process through PRC review. They currently do not have any effective way to protect trees on construction sites. VWI : \ARBORIST. MEM Appeals of removr :cisions are heard by the Zoning Ad~ trator. They are not a~vare of any appeals oft~,,. ZA decisions. The tree removal applications are not noticed nor the trees posted, so usually only the owner knows about the intent to remove. Therefore, only denials tend to be appealed. In about 10% of removals, they get calls objecting once th~ remova! starts, but then it is too late. Applications to remove are free and appeals cost $50. There is a replacement requirement for trees that are re.moved, but there is no follow up to see that this is done. Their goal is to turn around a decision to remove trees within 10 days, but find that is hard to meet, due to need to route the request between two departments. Public Works does not receive any funds from Planning for the arborists’ time, just have to squeeze it in around other work with city trees. Some arborists have the perception that Planning assigns the "newest hire" to the tree ordinance and may have an incentive to approve removals because they have to write a report only if the request is denied. May be more effective and more efficient to have the arborist in the Planning Department. They were not able to say how much stafftime goes into this effort. Estimated that half time might be enough for a program such as theirs, with few appeals and no community outreach and education effort, and no systematic review by the arborists of development plans~ The arborists find that some tree removal requests take much more time than others, that often there are cultural differences involved and a lack of conununication between neighbors. Sometimes trees near property lines are severely "pruned" while the neighbors are away on vacation. Think there is a great need for education and awareness. Los Gatos Christine Syskowski, Planning Dept. Tim Moyer, Parks Dept. (408) 354-6872 (408) 399-5777 Implementation shared by Planning and Parks Departments. Parks estimates that they contribute about a 3/4 time position, with Planning contributing about 1/4. In the Parks Department, the Supervisor, the Superintendent and the Arborist are all involved in responding to removal requests. They see some advantage in not having the responsibility with only one individual, because trees are very controversial and there is some benefit in "putting heads together". Residents tend to monitor dnforcement, "residents are our best eyes. Planning logs in all removal requests, provides monthly reports and does replacement monitoring, using the Sierra Permit Tracking System that they use for all city permits. Planning estimates that this takes about 5 hours a week. Planning also handles appeals. They receive about 25 removal requests per month, and about 20% are denied.. One or two decisions per quarter are appealed. Decisions may be appealed to Planning Commission and also to City Council; they spend quite a bit of time with this. The public perceives Planning as responsible for trees, citizens tend to call Planning when they have a concern about trees. They are currently trying to centralize the tree ordinance function in one location, and think an arborist in the Planning Department is a good idea. VWI:\ARBORIST.M£M Vol. 16, No. 11 December 1993 by Christopher J. Duerksen Christopher Duerksen, ~n ct:orney, is Senior Vice President and director of the Denver office of Clarion Associc:es, a national real estate consulting firm. He has authored several reports and articles on tree, woodland, and vege;ation protection and is author of a chapter on historic presetwation law in ZJegler, Rathkopf’s The Law of Zoning and Planning. ¯ General Regulatory Approaches to Tree Protection ¯ Sources of Authority ¯Complements to Regulation (The protection of trees, woodlands, and vegetation through municipal ordinances is one of the fastest growing areas of land-use law. Relying on specific enabling legislation, home rule authority, and other " sources, local governments are enacting increasingly strict and complicated regulations. Part I of this two-part article addresses local regulatory approaches :,fiat, while vac,.’ing widely from jurisdiction to jurisdiction, have some common elemez~t3. Protection is often healed on size, species, percent lot cover, and similar considerations. Replacement and mitigation requirements are often part of these local laws. ~iSavvy local governments also often adopt complements to regulation such as zoning and planning ncentives to help take the sting out of mandatory controls. Part 1I of the article will address the host of .~e~’,’-I c:=estions that tree c_~.’.servation ordinances can pose, primarily relating to specificity of review standards and the taking issue. I:: general courts have been very supportive of these enactments when drafted in a careful manner. Based on experience to date, it is clear that an increasing number of q communities will adopt tree protection laws to preserve their environment and quality of life.) Tree Protection Laws Are Sprouting Association of Home Builders reports that based on the , Tiae protection ,)f trees and vegetation through munici- :a~ ordinances has become one Of the fastest growing areas of land-use law at the local level. The National f nu’--mber of calls.s.s.Laqd inquiries it is£¢.¢ei_ving_fr.o~ its’~ members, local tree protection has _become one of the’, hottest development issues. "Tree and woodland preset-} Home Bu,.._!ders. Responding to growing concern ahoy.. ,he destruction of trees during construction, many communities are en- ’ing strong ordinances designed to protect existing .es and vegetation and require replacement where pre- servation is not feasibl.e. For example, in the early and mid-19$0s revealed that relatively few ~b~’~-"u~ a a opted regulations to protect tre~ on" ~ A~~dy published in 1984 ’~y the Umveraty of PennsyN-~~necl less than 100 tree t~rotecuon ordlnances, with the bulk bemz tn com- munmes ~n Florida and California. [Robert E. Coughlin, ~i"FfiTna C7. lv~~d"~ng, Private Trees and Public Interest: Programs for Protecting and Planting Trees in Metropolitan Areas, Research Report Series No. 10, Univ. of Permsylvania Dept. of City and Regional and City Planning (1984).] Similarly, a 1986 survey of urban forestry programs in over 1.000 communities conducted by Michigan State University found that only 13 percent had tree preservation ordinances that placed restrictions ~ c~.t:Jng of trees on private p~operty. [See J. James Kietbaso, "City Tree Care Programs: A Status Report," L.’a Gary Moll & Sara Ebenreck, Shading Our Cities C;~"ashington, D.C.: Island Press, 1989).] However, r,,,ore recent 1989 survey of all incorporated cities California turned up 159~cit_y tree ordinances, over half contained tree protection prov~-a~~. Tree pro- ion laws have Eeen sproutmg rapidly elsewhere ii~inois, Text, Missouri, and others. i ne tame ~ call oe seen in court decisions. Only nine ye~s a~o, the authcrs of a comprehensive legal .:Fady of tree preservation laws could write that "We have found no appellate decisions pas~ing upon either the reasonableness or-the constitationality of tree protection or.~m~ces. [See Coughlin, Mendes, and Strong, s,pra, at p. 45.] Karly decisions involving trees almost invari- ably dealt with negligence and valuation issues~a tree limb failing on a neighbor’s house causing serious dam- a~.e= or instances where workmen had erroneously c~opped trees down on the wrong property. [See, e.g., .-’.~.r.oration: Liabili~ of Public Utilir~ ~o Abutting O~ner for Destruction or Injury of Trees [n or Near Highway or S.~reer, 6’4 A.L.R.2d 866.] Few of these cases have much relevance .today for purposes here. ~s c...h~o-ed dramatical_l.~however, as more and more iuris- .dic.tions ado~t~’~u~-"~ tree protection ordinances that are ce:n~ challenged in court. Impor~andy, this new generation of re,relations are i~crcasin~Iv s[~n_oent and soohisticated. No longer satis- ::-q with savin~ publicl’! owned street trees or large .i;ncn tre~:: ;:,n ;:;ivate property, these new regulatory rd~.iIT~eS o!kc.q require protection of smaller trees or large l~~~nAgf trees destroyed during construction. In [fleet the development--Re, ess every:step. om subdivision to site...,ign, and fromconstruei.ibiYto~.~ -term maintenance..ctivity at the regional and sate levels has also been intensifying. Oregon’s comprehensive sate land-use iaw contains several specific goals requiring local govern- ments to ad’opt tree and vegetation protection measures, and land-use conservation advocates have been enforcing those provisions in court. In 1991, the State of Maryland enacted the country’s first "tree bill" with extensive provisions requiring forest preservation and reforestation on both private and public lands. With a goal of "no net loss" of trees, it requires that any development over a specified size must preserve a set percentage of trees on the property. This report provides an overview of the important element " ee tection ordinance and discusse.e.e~ the key legal issues raised by ~,chr*~.~,u~a- tions. Enabling Authority Because of the relatively recent nature of tree protec- tion program.s, an essential fu’st step in drafting an ordi- nance is to confwm that the locality has ad~uate enabling authority. Such authority may emanate from any of the sources discussed below. Specific Enabling Lefslation. Increasingly, state legislatures are enacting legislation that either empowers or requires local governments to adopt tree protection laws. For example, in Hawaii, state law requires that each county designate and protect "exceptional" trees. [HRS {}58-1 et seq.] The Oregon satewide land-use planning act sets as a goal the conservation of "forest lands for forest uses," which has been interpreted to include com- mercial forestry as.well as wildlife habitat and watershed protection. To secure state approval of local land-use plans, local governments must adopt re~lations designed to accomplish this goal. [ORS 183.482 (7), (8); ORS 197.040. For a discussion of these provisions, see 1000 Friends of Oregon v. Land Conservation and De- velopraent Commission (Land Cowry), 752 P.2d 271 (Or. 1988).] More recently, the Maryland legislature has adopted strong tree protection legislation that requires each county to enact comprehensive development review and regulatory programs that are set forth in detail in the state law. [Maryland Natural Resources {}5-1606 (1991).] Environmental Protection. Many states have en- acted enabling legislation authorizing or directing local governments to adopt measures necessary to conserve soil, prevent water pollution, protect wildlife habitat and coastal wetlands, or serve similar environmental goals. [See, e.g., Del. Code Ann. tit. 7 ch. 7508 (protection of 170