The Cupertino Courier

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Tree ordinance changes on shaky ground?

By Cody Kraatz

After months of deadlock and delay, the Cupertino Planning Commission on a 3-2 vote has recommended changes to the city's tree ordinance that encourage people to apply for permits rather than remove trees illegally.

The commission spent months crafting a new approach to tree removal fees and trying to streamline the city's tree replacement rules. However, the ordinance is still controversial and is likely to attract continued attention and input from the community. It is expected to go to the city council in April for final approval.

Environmentalists say they will continue to push for adding more trees to the protected list.

"My main concern is protecting native trees. I think that there are many, many beautiful trees, and I question why we have only five on the protected list," said Deborah Jamison, a resident and environmentalist. She said she will take her argument to the council.

Two cedars on the list are not native to California or even the United States, according to city arborist Barrie Coate. He offered reasons not to include more native trees due to disease and messiness, but Jamison disagrees.

"Native trees provide habitat for native species and a historical link to the natural history of our valley and hillsides. If we don't protect our native trees, who will?" she said.

Jamison has a 20-year-old coast live oak tree in her yard that, she said, supports birds and squirrels. "I think this tree has a right to grow," she said.

City staff and several residents argued that expanding the list would be more complicated and that adding more trees could backfire.

"The more you try to protect something, the more people will back away from it. Less is more," said Cupertino resident Sherry Fang.

Commissioners Gilbert Wong and Marty Miller voted against the amended ordinance, in part, because they were unsatisfied with the tree replacement system and the in-lieu fees charged if trees cannot be replaced.

"We're asking the property owner to foot the entire bill for what is a public good," said Miller. He argued the city should chip in to replace lost trees if it can chip in to pay for the beautification of private property through $300 Community Improvement Grants.

To estimate what in-lieu fees might be, city staff looked at the market price for different trees. A 24-inch boxed big-leaf maple could cost about $130 and another $130 to install, according to staff estimates. A 48-inch oak tree could cost at least $2,500 and about as much to install.

Maple or oak?

Local developer Terry Brown has been following the tree ordinance debates because he has a development application before the commission that includes a permit to remove a mature big leaf maple, one of the protected trees on the city's list.

Brown is glad there will not be more protected trees, and likes the idea of lower fees for those who abide by the law.

"It was very, very expensive even to make an application. I think an application process should be easier," said Brown, who is planning to build 1,300 square feet of office space and three condominiums on Orange Avenue near Stevens Creek Boulevard.

"Most developers certainly don't want to get crossways with the jurisdiction in which they work. They're usually prudent businessmen,'' he said. "It's more likely that a homeowner would remove a tree and then say they didn't know the rules."

The commission required Brown to buy and plant one 48-inch oak tree in the front near the street and one 24-inch maple in a 4.5-foot planter in the back, instead of the two oaks he had proposed. This is to preserve the presence of maples in Monta Vista, which already has a lot of oaks.

Brown said he has no problem buying and planting replacement trees, even though it could cost him more than $4,000 for the oak tree. Arborists valued the maple at about $2,000.

"The project has to stand on its own merits and be a quality development. Removing the tree will enhance the project," said Brown, who has numerous mature oaks at his own home.

Brown had the only tree removal application on file this year with the planning department and last year nearly two-thirds of the 17 tree removal applications filed came from developers, according to city staff.

Under the current tree ordinance, the city has the authority to require a "like-for-like'' replacement or an in-lieu fee equal to the cost of planting a replacement tree elsewhere, if a replacement tree will not work.

For trees over 36 inches and heritage trees in the original ordinance, the cost of replacing a large oak could have been as steep as $18,000. International Society of Arboriculture appraisal guidelines can go even higher.

In my back yard

Fang and her husband, Mark Santoro, have a large property on Lindy Lane and do not want the city to dictate what they do with trees on their private property.

"I'm just very concerned that our politicians are losing sight of private property ownership rights whenever they receive pressure from special interest groups," said Fang.

Working with a landscape architect who convinced them of the low-maintenance and wildlife-attracting benefits of native plants, Fang and her husband have planted 45 trees since they bought their property in 2001, including five oaks and 15 redwoods. There are more trees there now than when they bought it, said Fang.

Brown agreed with property owners who want the freedom to remove trees in their backyard without city approval first, as long as they are not protected trees. Oaks are protected trees under the city's ordinance once their trunks are more than 10 inches in diameter.

Brown said heritage trees, which are few and far between and have to be designated by the planning commission, ought to be "a grade above."

Tree rules

Among the changes to Cupertino's tree ordinance, approved by the planning commission March 13, are:

* A carrot-and-stick approach to removal permit fees. The city would charge $150 for the first tree and $75 for each additional tree if applications are on time, but $2,536 for any permit applied for retroactively.

* A tree management plan by which property owners could specify times and reasons for removing trees in the future without another permit. City staff proposed a $922 fee to pay for staff time.

* If a protected tree is removed, the property owner would be required to plant replacement trees on that same property. No more than two trees would be required for each one removed. The number, size and species of tree would depend on the size and species of the removed tree.

* If replacement trees really don't work on the property, the owner would be required to pay an in-lieu fee based on the market price and installation costs of the replacements to a fund the city sets up. The commission suggested the city council craft this further, rather than creating a commission subcommittee on the issue.

* Trees in front and rear yards would be treated the same. Protected trees would require a removal permit wherever they are, contrary to Commissioner Marty Miller's insistence that rear yard privacy means owners should also have greater liberty with trees there.

* Bay laurel and western sycamore trees are added to the existing list of protected trees, which already includes oak, big leaf maple, California buckeye, deodar cedar and blue atlas cedar trees.

* A tree removal permit now has to be posted on the tree or available upon request.

* The city's phone number will be included on metal tags that will identify heritage trees and warn people not to trim, thin or remove them without city approval.

* To compare this to the city's current ordinance, go to www.amlegal.com/cupertino_ca and search for chapter 14.18, Heritage and Specimen Trees.