Special Notice / Hearing: 10 Day_
Vote Required: Majority
To: Honorable Board of Supervisors
From: Steve Monowitz, Director of Planning and Building
Subject: Public hearing regarding an ordinance amending Article 7 - Tree and Natural Resources Protection of the San Mateo County Ordinance Code by adopting Chapter 8.400: Protected Tree Ordinance
County Number: PLN2018-00436
RECOMMENDATION:
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Conduct a public hearing regarding an ordinance amending Article 7 - Tree and Natural Resources Protection of the San Mateo County Ordinance Code by adopting Chapter 8.400: Protected Tree Ordinance:
A) Open the public hearing
B) Close the public hearing
C) Adopt an ordinance amending the County Ordinance Code, Article 7 - Tree & Natural Resources Protection of the San Mateo County Ordinance Code, by adopting Chapter 8.400: Protected Tree Ordinance and rescinding in their entirety Chapter 8.400: Significant Tree Regulations and Chapter 8.404: Heritage Tree Regulations; previously introduced at the Planning Commission meeting on September 11, 2024, (as Part Three of Division VIII (Protected Tree Ordinance)) and waive reading of the ordinance in its entirety.
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BACKGROUND:
Report Prepared By: Bharat Singh, Planning Services Manager, 628/204-1378
Applicant: San Mateo County Planning and Building Department
Public Notification: Ten (10) business day advanced notification for the hearing was provided via a 1/8th-page notice for the hearing posted in a newspaper (San Mateo County Times) of general public circulation.
Location: Countywide
Environmental Evaluation: A Notice of Exemption (NOE) for the ordinance updates has been posted on the State California Environmental Quality Act (CEQA) Clearinghouse website.
DISCUSSION:
San Mateo County first adopted tree removal ordinances, including the Heritage Tree Ordinance and the Significant Tree Ordinance, in April 1977. The Significant Tree Ordinance was entirely replaced in 1990, and both ordinances were amended in October 2016 to address concerns raised regarding tree protection during construction, and to address public concern that penalties for unauthorized removal were too lenient and did not sufficiently deter the practice. Following the 2016 adoption of these amendments, the Board of Supervisors directed staff to continue its efforts to update County tree removal ordinances to address a broader range of concerns about tree protection and removal raised by members of the public, the Planning Commission, and the Board of Supervisors.
In September 2016, staff convened a steering committee made up of a broad range of interests, experts, state and local agencies and County departments to prepare comprehensive amendments to the County’s tree removal ordinances [See Attachment B]. The Committee met eight (8) times to review different issue areas and policy options, informing staff’s efforts to draft a new combined tree protection ordinance.
One outcome of the Steering Committee process was a consensus that developing one tree protection ordinance was preferred over amending the two existing ordinances. The Department solicited proposals from technical consultants to assist in developing a unitary tree protection ordinance and selected the consulting firm Dudek’s proposal in September of 2022. The Dudek team worked closely with Department staff and engaged several stakeholders such as the members of the Steering Committee, local arborists, Community representatives and County staff to prepare a draft of the Protected Tree Ordinance (“Ordinance”) that was publicly circulated on June 23, 2024. In addition to the Ordinance, Dudek was tasked to develop a guidance document to assist homeowners, businesses, and local contractors to better understand standard and acceptable practices in tree and canopy management. Dudek prepared a guidance website that not only provides good tree and canopy management guidance, but also provides a tool for county residents to determine if they need a tree removal or tree pruning permit. The website is sanmateocountytrees.org.
County Staff and the Dudek team made presentations to the Planning Commission (July 10, 2024), the MidCoast Community Council (July 24, 2024), and the North Fair Oaks Community Council (July 25, 2024). County staff has received several public comments since the release of the draft ordinance and has worked to include some of the recommendations in the draft ordinance. A summary of the comments has been provided in Attachment C. Other information and meeting details regarding the development ordinance are available on the Tree Ordinances Update Project website: <https://planning.smcgov.org/tree-ordinances-update-project>.
A. SUMMARY OF PROPOSED AMENDMENTS
1. Updated Tree Protections:
The current Significant Tree Ordinance requires permits for removal of any tree 12-inches in diameter and larger in urbanized areas (and some rural areas). The current Heritage Tree Ordinance requires permits for removal of certain larger indigenous trees of varying sizes. The two ordinances offer similar protections for trees, because the findings required for authorizing removal permits are similar, but the Significant Tree Ordinance includes protections for a broader range of trees.
The proposed Protected Tree Ordinance standardizes the tree protection regime, excludes undesirable species from protection (invasive, fire risk), and broadens the types of trees protected by including trees planted as a mitigation measure or retained by permit conditions, as well as communities of trees (Section 8.400.060).
Trees of non-native species that are greater than 38-inch Diameter at Breast Height (DBH) and that may have other ecological value such as resting or nesting location for migrating aviary species will also require a permit to remove. This framework retains the protections of the current ordinances, elevates protection of indigenous species, and streamlines permitting for a small class of trees considered nuisance or invasive species.
The proposed ordinance also would create a new Heritage Tree designation process for trees that are unique and of importance to the community due to any of the following factors:
a. It is an outstanding specimen of a desirable species.
b. It is one of the largest or oldest trees in San Mateo County.
c. It possesses distinctive form, size, age, location, and/or historical significance.
d. It meets the definition of Heritage Tree consistent with Section 8.400.030 of the new ordinance in that it possesses exceptional and unique size, age, horticultural significance, aesthetic, biological, cultural, or historic value, and is irreplaceable and expected to have a continuing contribution to the community.
The Board may approve a Heritage designation if the above findings are made, and the proposal has the consent of the property owner. A Heritage Tree(s) may have the designation removed by the Board if the tree(s) die or are approved for removal by the Board based upon a finding that it is appropriate and necessary to delist including lack of structural capacity, declining vigor, disease causing mortality, death, or hazard as determined by the County Arborist. In such instances, the County shall record a document extinguishing the covenant.
2. Arborist Reports and Arborist Credentials:
The 2016 updates to the Significant and Heritage Tree Ordinances improved the arborist report submittal requirements for tree removal permits. Further clarification and requirements have been added to the proposed ordinance. Applicants seeking development permits that will remove or may impact protected trees must provide information about tree protection during construction and must implement post construction remedial measures and assessments of tree health and any impacts from construction or grading. Arborists must also supervise, document, and report on construction activities within a specified tree protection zone.
Arborists submitting reports in support of tree removal applications or tree protection measures must have a current certification from the ISA or from the American Society of Consulting Arborists, or other qualifications approved by the Director of Planning and Building. Arborists preparing reports for tree removals due to hazards shall be at a minimum Society of Arboriculture (ISA), ISA Tree Risk Assessment Qualified (TRAQ).
To ensure that the public, staff, and decision makers had adequate information to determine whether to authorize any tree removal, a guidance website (sanmateocountytrees.org) has been developed that will include a template for required arborist reports as well as additional guidance regarding good tree management practices. The arborist report template will generally conform to the standards developed by the ISA, including additional requirements for trees proposed for removal due to hazardous conditions.
3. Trees and Development:
The proposed ordinance increases protections for trees to be preserved on construction sites by retaining the Existing Tree Plan and Tree Protection Plan policies of the current ordinances; clarifying the types of protection required during construction, including arborist supervision and reporting; creating new post construction assessment requirements, both prior to issuance of occupancy permits, and Three (3) years post-construction; and enabling staff or decision makers to require bonds for trees to be protected when warranted. In addition, the new ordinance prohibits new development from removing more than 50 percent of the existing canopy on the parcel, unless the maximum development potential allowed under the designated zoning cannot be achieved without alternative layouts/designs of the proposed structure(s).
4. Replacement Planting
The current tree removal and zoning ordinances require disparate replacement requirements in different areas of the County. The proposed Ordinance creates a singular regulation that requires all protected trees that will be removed to be replaced and requires an in-lieu fee be paid to fund off-site tree planting or tree management activities (to be overseen by the Parks and Public Works Departments) when on-site replacement is infeasible. The in-lieu fee has been determined to be $3,345.00 per tree. This fee includes the labor costs for replanting and maintenance for the first 10 years and valuation of the ecosystem lost by the removal of the tree.
The new ordinance requires greater replacement when removal accompanies construction and requires replacement with tree sizes most likely to survive and thrive, as well as requiring replacing removed indigenous species with the same species, unless that species will not thrive in the available area(s) for planting. Standardizing these replacement tree size requirements will reduce the uncertainty of project costs and prevent erroneous “bigger is always better” adjustments to permit conditions when it is well-understood by botanists and arborists that a particular species will perform better if planted at the ideal transplant age for the species.
5. Pruning Permits:
The proposed ordinance establishes new permit requirements for the pruning of branches for protected indigenous trees. Branches greater than 6 inches; any branch on oak trees with trunks greater than 30 inches diameter; and pruning of any designated heritage tree will now require a permit.
6. Review Criteria and Findings:
The current tree removal ordinances require that at least one finding from a list be made prior to granting a permit for removal. The proposed ordinance (Section 8.400.150) requires that findings be made based on the reason for the proposed tree removal, that all relevant findings be made, and for certain removals, several required findings must be made. Criteria address tree removal with and without development, with subdivisions or within scenic corridors and for pruning permits. The criteria are restated as required findings in the proposed ordinance to clarify decision-making for all involved.
For tree removals proposed with accompanying structural development several additional criteria must be met, including the preparation of existing tree plan and a tree protection plan during and post construction; a determination that there is no feasible building site on the parcel that enables the preservation of the existing protected tree(s); and, that no more than 50 percent of the property’s tree canopy would be lost.
7. Other Improvements:
a. Clarified Exemptions, including for County Departments
b. Migratory Bird Treaty Act protections
c. Tree Removal Practices
d. Clarified applicability of Tree Ordinances in rural lands zoned for Resource Management, Planned Agricultural District (PAD) and Tree Protection Zones (TPZ)
f. Clarified criteria for emergencies.
B. PUBLIC ENGAGEMENT
In September 2016, staff convened a steering committee made up of a broad range of interests, experts, state and local agencies and County Departments to prepare comprehensive amendments to the County’s tree removal ordinances. The Committee met eight times to review different issue areas and policy options, and to inform staff’s efforts to draft a new combined tree protection ordinance.
One outcome of the Steering Committee process was a consensus that a single tree protection ordinance was preferred over amending the two existing ordinances. The Steering Committee roster, meeting agendas, staff reports, meeting summaries, presentations and preliminary ordinance drafts are available on the Tree Ordinances Update Project website.
After the onboarding of the consultants in September of 2022, the consultant had further engagements with different stakeholders that included several community councils, local arborists, developers, and other County departments. A draft of the ordinance was released for public review on June 23, 2024. County Staff and the consultants made three public presentations on the draft ordinance and the new guidance website:
a. July 10, 2024 - Planning Commission
b. July 24, 2024 - MidCoast Community Council
c. July 25, 2024 - North Fair Oaks Community Council
Since the release of the Draft Ordinance document, Staff has received numbers of comments from the public. A summary document of the comments received has been posted on the project web page, and is attached to this staff report (Attachment C)
C. PLANNING COMMISSION ACTION
The San Mateo County Planning Commission reviewed the proposed ordinance at its regularly scheduled hearing on September 11, 2024 and recommended that the Board of Supervisors adopt the ordinance amending the County Ordinance Code, Article 7 - Tree & Natural Resources Protection, Chapter 8.400: Protected Tree Ordinance, with an addition to expand the notification requirement to adjacent property owners from the proposed distance of 100 feet of the permit parcel up to within 300 feet under Section 8.400.140. The Planning Commission’s consideration and recommendation constituted a first reading of the proposed ordinance.
D. ALTERNATIVES
The alternatives to adoption of the ordinance amending County Ordinance Code, Article 7 - Tree & Natural Resources Protection, Chapter 8.400: Protected Tree Ordinance, is the continuation of the existing Significant Tree and Heritage Tree Ordinances.
E. ENVIRONMENTAL REVIEW
A Notice of Exemption (NOE) for the ordinance updates has been posted on the State CEQA Clearinghouse website, as well as the department’s project website - https://planning.smcgov.org/tree-ordinances-update-project.
The ordinance has been reviewed and approved by the County Attorney’s Office as to form.
FISCAL IMPACT:
There is no fiscal impact to the County from adoption of the proposed amendments to County Ordinance Code, Article 7 - Tree & Natural Resources Protection, Chapter 8.400: Protected Tree Ordinance.
ATTCHMENTS:
A. Amended County Ordinance Code, Article 7 - Tree and Natural Resources Protection, Chapter 8.400: Protected Tree Ordinance
B. Steering Committee Roster
C. Summary of Public Comments Received
D. CEQA Notice of Exemption
E. Protected Indigenous Tree List