Council Strengthens Tree Protections: Fines Upped; Criminal, Civil Prosecutions Possible for Illegal Removals

City Attorney said tree removal could be prosecuted as a criminal misdemeanor

Published : Tuesday, May 1, 2018 | 5:23 AM

The City Council Monday unanimously approved modifications to the City’s Tree Ordinance during the First Reading of the proposed new amendments, which would increase penalties for developers, building owners or residents who remove protected trees for their properties. The ordinance’s wording was modified to reflect a higher misdemeanor fine, already in place at the City’s municipal code level.

According to the Planning Department staff report, the ordinance, once officially adopted, will strengthen the remedies against offenders and authorize the City to suspend or revoke any discretionary permit associated with the address at which the offense occurs.

The ordinance also authorizes the City Manager to prepare and update its tree protection guidelines and tree replacement matrix, the formula for the replacement of illegally removed trees.

Jon Pride, a landscape architect, questioned the ordinance’s tree replacement matrix, and called the ordinance “onerous.”

Said Pride, “I’ve had several clients replace lots of trees. Twenty-one trees planted for six removed,” in one case, he said. “I think the entire ordinance needs to be looked at.”

Mayor Terry Tornek, told him, however, that the time for that discussion had passed.

“Your comments are thoughtful,” said Tornek, “but you’re really stepping in here at the eleventh hour. This is really not the time to analyze the fundamental premise of the ordinance.”

Pride responded that he had asked for a discussion with Planning Director David Reyes “a year ago and nothing came out of that.”

At least one community member, Allendale resident Nina Chomsky, protested the ordinance, saying that the penalties were still not stiff enough.

Chomsky noted that the strengthened ordinance was born out of a case in March of 2017, involving palm trees removed by the owners of the former Twin Palms restaurant.

“If these speculative realtors or developers are not deterred or punished, they will just pay the fines,” said Chomsky, “because they’re going to make much more money from what they have put up in place of those trees. The fines, $250, $5,000, are meaningless. Why aren’t we getting three times the replaced value of those trees?”

Added Chomsky, “I don’t see punishment here, and I don’t see deterrence here.”

Planning Director Reyes told the group that the developers who removed the trees at Twin Palms were fined $6,000, but with the new ordinance, would have been fined approximately $18,000, “along with potential civil action.”

City Attorney Michele Bagneris noted that tree removal could be prosecuted as a criminal misdemeanor, as well as be slapped with civil and administrative violations.

Fines have been increased to $5,000, said Bagneris, or the full amount of the replacement value of the removed tree or trees, whichever amount is greater.

The ordinance states, in part, that “Any permit or approval which will result in injury to or removal of a mature, landmark, landmark-eligible, native or specimen tree protected under this chapter shall be denied unless there is a public benefit, or a public health, safety or welfare benefit, to the injury or removal that outweighs the protection of the specific tree

Permits or approvals may also be allowed if “The present condition of the tree is such that it is not reasonably likely to survive; or there is an objective feature of the tree that makes the tree not suitable for the protections of this chapter; or there would be a substantial hardship to a private property owner in the enjoyment and use of real property, if the injury or removal is not permitted or if the project, includes “a landscape design plan that emphasizes a tree canopy that is sustainable over the long term by adhering to the replacement matrix adopted prepared by resolution of the City Council and the city manager and included in the associated administrative guidelines.”

According to the ordinance, developers may request to pay a fee instead of planting on site up to 50 percent of the required number of replacement trees. The fee would be 100 percent of the appraised value of the tree that cannot be replaced.

Applicants would have to submit an application that includes an appraisal by a certified arborist with the number of replacement trees calculated using the replacement matrix, along with “a report by a certified arborist or landscape architect that determines that the number of required on-site replacement trees would inhibit healthy growth,” according to the ordinance.”

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