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HomeMy WebLinkAbout2009-04 ORDINANCE NO. 2009-04 REPEALING THE EXISING SECTION 32-79 OF THE DANVILLE MUNICIPAL CODE AND ADDING A NEW SECTION 32-79 RELATED TO TREE PRESERVATION The Danville Town Council does ordain as follows: SECTION 1. REPEALING EXISTING SECTION 32-79 OF THE DANVILLE MUNICH> AL CODE. The existing Section 32-79 of the Danville Municipal Code is hereby repealed in its entirety. SECTION 2. ADDING NEW SECTION 32-79 OF THE DANVILLE MUNICIPAL CODE. A new Section 32-79 is hereby added to the Danville Municipal Code to read as follows: 32-79 TREE PRESERVATION. 32-79.1 Purpose and Intent. The Town of Danville contains many species of native and non-native trees that are of great beauty and significance. It is recognized that the preservation of these trees enhances the natural beauty, sustains the long term potential increase in property values which encourages quality development, maintains the natural ecology, retains the tempering effect of extreme temperatures, helps to create and retain the identity and quality of the Town which is necessary for successful business to continue, improves the attractiveness of the Town to residents and visitors, prevents the erosion of top soil, provides protection against flood hazards and risk of landslide, and increases the oxygen output of the area which is needed to combat air pollution. It is also recognized that construction activities around trees can harm or destroy trees. For these reasons, the Town Council finds that in order to promote the public health, safety, and general welfare of the Town of Danville, while at the same time recognizing individual rights to develop private property in a manner which will not be prejudicial to the public interest, it is necessary to enact regulations controlling the removal of and preservation of trees within the Town. One of the purposes of this chapter is to provide financial incentives and security to protect and replace damaged or destroyed trees to the maximum extent possible. (Ord. # 2001-01, 93) 32-79.2 Definitions. As used in this section: a. Certified arborist shall be as defined by the International Society of Arboriculture; a "consulting arborist" who satisfies the requirements of the American Society of Consulting Arborists who, after review by the Chief of Planning, is determined to meet the standards established for certified or consulting arborists described above. b. Dripline means the area of ground directly underneath any portion of the canopy of a tree. c. Heritage tree means any single trunked tree in Town, regardless of species, which has a trunk diameter of thirty-six (36) inches or greater measured four and one-half (4-1/2) feet above the ground. d. Minor development means any residential development of four (4) or fewer units. e. Major development means any commercial development, or any residential development including five (5) or more residential units. f. Memorial tree means a tree planted on public property in memory of or commemoration of an individual or individuals. g. Protected tree means a tree of a specific species or size which can not be disfigured, damaged, or removed within the Town of Danville without obtaining a Tree Removal Permit from the Town. h. Routine Maintenance means actions taken to maintain the health of a tree including but not limited to, removal of deadwood, diseased or crossing limbs, control of deleterious insects, and pruning pursuant to pruning standards specified by the Western Chapter of the International Society of Arboriculture Pruning Standards. i. Tree means a live woody plant having a single perennial stem or a multi- stemmed perennial plant which is over fifteen (15) feet in height at maturity. This definition does not include trees planted, grown and held for sale by licensed nurseries or planted and grown as part of an active commercial orchard. j. Tree removal means the removal, destruction, or unnecessary disfigurement of a tree. (Ord. # 2001-01, 93) PAGE 2 OF ORDINANCE NO. 2009-04 32-79.3 Protected Trees. a. Any of the following native trees having a trunk or main stem which measures ten (10) inches or greater in diameter measured four and one-half (4- 1/2) feet above natural grade or, for a multiple trunked tree, a combination of trunks totaling twenty (20) inches or greater in diameter measured four and one- half (4-1/2) feet above natural grade, on any type of lot or property: 1. Coast Live Oak (Quercus Agrfolia) 2. Valley Oak (Quercus Lobata) 3. Canyon Live Oak (Quercus Chrysol) 4. Blue Oak (Quercus Doulgassi) 5. California Black Oak (Quercus Kelloggi) 6. Interior Live Oak (Quercus Wislizenii) 7. White Alder (Alnus Rhombifolia) 8. California Bay (Umbellularia California) 9. California Buckeye (Aesculus Californica) 10. California Sycamore (Platanus Racemosa) 11. Madrone (Arbutus Menziesii) 12. London Plane Tree (Platanus Acerifolia) b. Any Heritage Tree. c. Any Memorial Tree. d. A tree shown to be preserved on an approved Development Plan or specifically required by the Planning Commission to be retained as a condition of approval of an entitlement. A tree specifically required to be preserved by the Planning Commission shall require a subsequent Planning Commission approval for removal. e. A tree required to be planted as mitigation for the removal of a protected tree, as established under subsection 32-79.6.d. PAGE 3 OF ORDINANCE NO. 2009-04 (Drd. # 2001-01,93) 32-79.4 Permit Required; Exceptions. a. Permit. Except as provided in paragraph b of this subsection, no person may destroy or remove a protected tree on any property within the Town of Danville without obtaining a Tree Removal Permit from the Planning Division pursuant to subsection 32-79.6. b. Exceptions. A Tree Removal permit is not required for the following: 1. If the condition of a protected tree presents an immediate hazard to life or property, it may be removed without a permit. However, subsequent to the removal, the property owner shall obtain a Tree Removal permit from the Town. The property owner may be required to provide evidence to the Town regarding the condition of the tree which necessitated its immediate removal. 2. A tree whose removal was specifically approved as part of a previously approved development entitlement. 3. The routine maintenance of a protected tree shall not require a permit. Routine maintenance which, in the opinion of the Chief of Planning, varies from the definition of routine maintenance contained within this Ordinance shall be subject to fines and penalties as provided in Section 32-79.10 of this chapter. (Drd. # 2001-01, 93) 32-79.5 Permit Application. a. An application for a Tree Removal permit shall be submitted to the Planning Division and shall be accompanied by the following information: 1. When combined with a larger development projects, a preliminary development plan, and preliminary grading plan, showing the number, size, type, and location of trees to be removed and trees to be preserved, and the location of all existing and proposed improvements on the property. The plan should include the approximate drip line(s) of all trees on the site. 2. The applicant or property owner's name, address, and telephone number. 3. The name of the company, or individual to remove the tree(s), their address, phone number and business license number. PAGE 4 OF ORDINANCE NO. 2009-04 4. Specific reasons for requesting removal of tree(s). b. A tree report, prepared by a certified arborist or member of the International Society of Consulting Arborists, shall be submitted as part of the Tree Removal permit, if determined necessary by the Chief of Planning. The adequacy of the tree report shall be subject to determina'tion by the Chief of Planning. c. Application for, and granting of a Tree Removal permit may be jointly considered with an application for other development entitlements which may be required. (Ord. # 2001-01,93) 32-79.6 Decision Regarding Permit. a. Time of Decision. The Planning Division shall render a decision regarding the permit within fifteen (15) working days after the filing of a complete application. If an application is being jointly considered with any other application for a development entitlement, then the decision on the Tree Removal permit shall be rendered simultaneously with a decision on the development entitlement application. b. Criteria. In order to issue a Tree Removal permit, the Town shall consider the following criteria: 1. The condition of the tree(s) with respect to its health, imminent danger of falling, proximity to existing structures, and interference with utility infrastructure. 2. The necessity to remove the tree(s) to allow for the reasonable use, enjoyment, or development of the property. 3. The age and/ or size of the protected tree with regard to the appropriateness of the size of the area in which the tree is planted and whether its removal would encourage healthier, more vigorous growth of other plant material in the area. 4. If none of the above criteria are satisfied, the Planning Commission may authorize removal if it finds that, due to the location of the tree on the property and its orientation as it related to the residence on the property and/ or actively used yard areas, the tree is unreasonably adversely impacting the property owner's enjoyment and/ or use of the property. In this case, mitigation PAGE 5 OF ORDINANCE NO. 2009-04 tree replacement plantings may be required as found appropriate by the Planning Commission. 5. The effect of the removal of the tree upon soil erosion or whether its removal will result in a significant diversion or increase in the flow of surface water. 6. The number, species, size and location of other protected trees in the area and the effect the removal of the tree(s) will have upon shade, privacy between properties, and scenic beauty of the area. 7. Possible visual impacts within a Town-identified Major Ridgeline or Scenic Hillside Area created as a result of the tree removal. c. Additional Recommendations. The Chief of Planning may refer any Tree Removal application to the Planning Commission for review and action. Upon such referral, the timeline for action established under paragraph a of this subsection shall automatically increase to forty-five (45) days unless connected to another development application, in which case the request shall be considered jointly with that application. d. Mitigation Measures. The Planning Division shall grant or deny the application, or grant the application with conditions of approval which are intended to help mitigate the removal of the tree(s). Where mitigation is determined to be necessary, the Town may require the planting of on-site or off- site replacement trees (location and species to be determined by the Town) which are of a cumulative diameter necessary to equal the diameter of the tree(s) which are approved for removal. (Ord. # 2001-01, ~3) 32-79.7 Appeal. A person aggrieved by the decision of the Planning Division may appeal to the Planning Commission, or aggrieved by the decision of. the Planning Commission may appeal to the Town Council, by paying the appeal fee to the Town and filing a written notice of appeal setting forth specific grounds for the appeal with the City Clerk within ten (10) calendar days after the determination of the Planning Division or Planning Commission. (Ord. # 2001-01, 93) PAGE 6 OF ORDINANCE NO. 2009-04 32-79.8 Memorial Trees. A person who wishes to sponsor a memorial tree planted on public property may file an application with the Town's Maintenance Services Department. The application shall contain the following information: a. Name of the person for whom the tree is to be planted. b. Species of tree preferred. c. Desired location of planting. (Ord. # 2001-01, ~3) 32-79.9 Tree Protection During Development. a. Applicability. This subsection applies to development which would occur within the dripline of one or more protected tree(s), as established on the preliminary development plan, demolition plan, and/ or grading plan. For the purpose of this subsection, development shall mean any work or improvement that requires approval from the Town. b. Security. Before issuance of a demolition, grading, or building permit: 1. Where development is proposed within the dripline of one (1) or more protected tree(s), the property owner or developer shall submit a security to the Chief of Planning on a per tree basis. The required security shall be established as follows: (a) The applicant shall be required to secure an appraisal of the condition and value of all affected trees. The appraisal shall be done in accordance with the then current addition of the "Guide for Establishing Values of Tree and Other Plants," by the Council of Tree and Landscape Appraisers under the auspices of the International Society of Arboriculture. The appraisal shall be performed by a certified arborist, and shall be subject to review and approval by the Chief of Planning. (b) For a major development, if the appraised value of the tree(s) is fifty thousand ($50,000.00) dollars or less, the applicant shall deposit with the Town a cash security, letter of credit, or other security found to be acceptable by the Chief of Planning, equal to the value of each tree required to be appraised, for the purpose of securing and guaranteeing the applicant's obligations under paragraph c of this subsection. If the appraised value of the tree(s) is over fifty thousand ($50,000.00) dollars, the applicant shall deposit with the Town a cash PAGE 7 OF ORDINANCE NO. 2009-04 security, or other security found to be acceptable by the Chief of Planning, equal to fifty thousand ($50,000.00) dollars plus one-half (1/2) of any amount between fifty thousand ($50,000.00) dollars and one hundred thousand ($100,000.00) dollars plus one quarter (1/4) of any amount between one hundred thousand ($100,000.00) dollars and one hundred fifty thousand ($150,000.00) dollars plus one tenth (1/10) of any amount in excess of one hundred fifty thousand ($150,000.00) dollars. (c) For a minor development, if the appraised value of the tree(s) is twenty-five thousand ($25,000.00) dollars or less, the applicant shall deposit with the Town a cash security, letter of credit, or other security found to be acceptable by the Chief of Planning, equal to the value of each tree required to be appraised, for the purpose of securing and guaranteeing the applicant's obligations under paragraph c of this subsection. If the appraised value of the tree(s) is over twenty-five thousand ($25,000.00) dollars, the applicant shall deposit with the Town a cash security, or other security found to be acceptable by the Chief of Planning, equal to twenty-five thousand ($25,000.00) dollars plus one-half (1/2) of any amount between twenty-five thousand ($25,000.00) dollars and fifty thousand ($50,000.00) dollars plus one quarter (1/4) of any amount between fifty thousand ($50,000.00) dollars and seventy-five thousand ($75,000.00) dollars plus one tenth (1/10) of any amount in excess of seventy-five thousand ($75,000.00) dollars. (d) The Town shall retain the security until the termination of the guarantee periods required under this chapter. Any funds remaining on deposit at the expiration of the guarantee period, and after all of the developer's or property owner's obligations under this chapter have been satisfied, shall be returned to the developer or property owner. Nothing under this chapter prohibits the transfer of the security obligation should the property change ownership. c. Guarantee and Replacement. A developer or property owner shall: 1. Guarantee the health of each protected tree on the site that is not approved for. removal from the date of the Town's finaling of the permit associated with the last construction activity which endangered the tree until the completion of at least two (2) full growing seasons after the completion of the construction activity; 2. Replace a protected tree(s) that dies during the guarantee period, as a result of damage caused by the development, with a tree(s) of a species approved by the Town, of a cumulative number and trunk diameter which equals the total trunk diameter of the tree(s) that died. The developer or property owner shall PAGE 8 OF ORDINANCE NO. 2009-04 also be required to install and maintain irrigation (as determined necessary by the Chief of Planning) for the replacement tree(s) until the tree(s) are established; 3. Relocate and maintain during construction any tree identified for temporary stockpiling. During the period of time such trees are stockpiled, they shall be maintained by a licensed nurseryman; 4. Replace any stockpiled tree(s) that dies during the guarantee period with a tree(s) of the same species with a cumulative trunk diameter equal or greater than the total trunk diameter of the tree(s) which died; 5. Notify the Chief of Planning of any damage that occurs to a protected tree(s) during construction so that professionally acceptable methods of treatment may be administered. The repair of the damage shall be at the expense of the responsible party and shall be by professional standards, approved by the Chief of Planning. Failure to notify the Chief of Planning and/ or to administer acceptable methods of treatment may result in the issuance of a stop work order for any permit associated with the project development activity. If determined necessary by the Chief of Planning, the Town may utilize security funds submitted as part of the development to retain a qualified third party arborist to review the tree(s) and have any necessary mitigation on the tree(s) performed; 6. In addition to replacing a guaranteed tree(s), upon determination by the Chief of Planning that a guaranteed tree has died through the fault of the applicant, pay to the Town a Civil Penalty in accordance with subsection 32- 79.10.b., below. 7. A tree shall be presumed to have died through the fault of the applicant unless the applicant can prove to the Town that the tree died for reasons beyond the applicant's control or, in the case of stockpiled trees, the applicant used reasonable care to maintain the tree. In addition to such penalty, whenever the cost of replacing a tree(s) for which a civil penalty is levied is less than the appraised value of the tree(s), the applicant shall also pay the Town the difference between that appraised value and the cost of the replacement tree(s). The applicant's verified receipt for the cost of the replacement tree(s) shall be conclusive proof of the cost. If the applicant chooses not to submit such receipt within ten (10) days following replacement of the tree(s), then the Chief of Planning shall determine the value of the replacement tree. 8. Use of Penalties Collected. Penalties collected under this section shall be used as follows, as found appropriate by the Chief of Planning: (a) To upgrade street trees along nearby public streets. PAGE 9 OF ORDINANCE NO. 2009-04 (b) To beautify or enhance public places, including parks and open spaces, within the Town. (c) To beautify or enhance the site where the tree removal occurred. (Ord. # 2001-01, g3) 32-79.10 Penalties. a. Criminal Penalties. Any person, including but not limited to the property owner, the person performing the work, and/ or any other responsible person, who willfully violates any provision of this chapter or any condition established as part of any permit issues hereunder shall be guilty of a misdemeanor subject to penalties prescribed in subsection 1-5.3 of this code. b. Civil Penalties. Any person, including but not limited to the property owner, the person performing the work, and/ or any other responsible person, who violates any provision of this chapter, or any condition established as part of any permit issues hereunder shall be liable to the Town for a civil penalty of three (3) times the value of the tree. For purposes of calculating the value of the tree(s), the then-current edition of the "Guide for Establishing Values of Trees and Other Plants" by the Council of Tree and Landscape Appraisers under the auspices of the International Society of Arboriculture shall be used. The Town's use of penalties collected shall be as established under subsection 32-79.9.c.7. c. Cumulative Remedies. The foregoing remedies shall be deemed nonexclusive, cumulative, and in addition to any other remedy the Town may have at law or in equity, including but not limited to injunctive relief to prevent violation of this Chapter. d. Appeals. A person aggrieved of an administrative action may appeal the action as specified under Section 1-8 this code. (Ord. # 2001-01, g3) SECTION 3. CODIFICATION. Section 2 of this ordinance shall be codified in the Danville Municipal Code. SECTION 4. SEVERABILITY. If any section, subsection, subdivision, paragraph, clause or phrase in this ordinance, or any part thereof, is for any reason. held to be invalid or PAGE 10 OF ORDINANCE NO. 2009-04 unconstitutional, such decision shall not affect the validity of the remaining sections or portions of this ordinance or any part thereof. The Town Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION 5. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have a summary of this ordinance published twice in a newspaper of general circulation, once within five (5) days before its adoption and once within 15 (fifteen) days after adoption. This ordinance shall become effective 30 days after adoption. The foregoing Ordinance was introduced on June 16, 2009 and approved and adopted by the Danville Town Council at a regular meeting held on July 7, 2009, by the following vote: AYES: NOES: ABSTAIN: ABSENT: ~ APPROVED AS TO FORM: 7l~13 ~~ CITY ATTORNEY ). CITY CLERK CLERK'S CERTIFICATE I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 2009-04 of said Town and that said ordinance was published according to law. Dated: City Clerk of the Town of Danville PAGE 11 OF ORDINANCE NO. 2009-04