THE ALAMEDA COUNTY TREE ORDINANCE
ORDINANCE NO: 0-2004-23
AN ORDINANCE ADDING CHAPTER 12.11 OF TITLE 12 OF THE ALAMEDA COUNTY GENERAL ORDINANCE CODE
The Board of Supervisors of the County of Alameda ordains as follows:
The Board of Supervisors of the County of Alameda repeals Sections 12.08.540, 12.08.550, 12.08.560 and 12.08.570 of Chapter 12.08, Title 12 of the General Ordinance Code of the County of Alameda.
The Board of Supervisors of the County of Alameda ordains that Chapter 12.11 shall be added to Title 12 of the General Ordinance Code of the County of Alameda as follows:
REGULATION OF TREES IN COUNTY RIGHT-OF-WAY
The County Board of Supervisors finds that the preservation of trees within the County right-of-way enhances the natural scenic beauty, sustains the long term potential increase in property values, protects the surrounding area from soil erosion, moderates the effects of extreme weather conditions and temperatures, improves air quality including increasing the oxygen output of the area which is needed to combat air pollution, creates the identity and quality of the County's businesses and residences, and improves the attractiveness of the County to visitors.
For these reasons, the Board of Supervisors finds that in order to promote the public health, safety and general welfare of the County, 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 this Chapter to preserve trees located within the County right-of-way and to control the planting, maintenance and removal of those trees.
This Chapter may be referred to collectively as the County's "Tree Ordinance."
As used in this Chapter, the following terms, phrases and words are assigned the following meanings unless the context indicates otherwise. Words not defined in this Chapter shall have the definitions set forth in Section 12.08.020 of Chapter 12.08 of the County's General Ordinance Code. Other words not defined herein or in Section 12.08.020 shall be given their common ordinary meaning.
- County Right-of-Way "County right-of-way" shall mean land, which by deed, conveyance, agreement, dedication, usage or process of law is reserved for use by the County or any other public entity or by the licensees or agents of the County or any other public entity.
- Day or Days Unless otherwise specified, "day" refers to a calendar day and "days" refers to calendar days.
- Director "Director" refers to the Director of the Alameda County Public Works Agency or his or her designee.
- Maintenance or Maintaining "Maintenance" or "maintaining" includes all actions affecting or which may affect the growth or health of any tree such as, by way of example and not limitation, the cutting, trimming, topping, pruning, or removal of any tree. However, as used in this Chapter, "maintenance" does not include the trimming, pruning, cutting or removal of tree branches one inch or less in diameter.
- Tree or trees "Tree" or "trees" shall mean any tree that meets the following criteria: any woody perennial plant characterized by having a single trunk or multi-trunk structure at least ten feet high and having a major trunk that is at least two inches in diameter taken at breast height (DBH) taken at 4.5 feet from the ground. It shall also include those plants generally designated as trees and any trees that have been planted as replacement trees under the County Tree Ordinance or any trees planted by the County.
- Tree Advisory Board "Tree Advisory Board" is a 5 member board comprised of citizens of the County appointed by the Board of Supervisors. One appointment will be made by each member of the Board of Supervisors. Each Tree Advisory Board member shall serve a term of 24 months subject to re-appointment. The Tree Advisory Board shall be an advisor to the Public Works Agency Director, shall assist the Director in making policy decisions related to this Ordinance, and shall hear all appeals as provided in this Chapter.
- Tree Policy Manual "Tree Policy Manual" means a document prepared by the Public Works Agency that states policies, procedures and other relevant information regarding the selection, planting, maintenance and removal of trees located in the County right-of-way.
- Utility or Utilities "Utility" or "utilities" means any person who owns, leases, operates or licenses a facility in order to provide gas, water, electricity, sewer, telecommunications, cable television or other customer services regardless of whether such a person is deemed a public utility by the California Public Utilities Commission (CPUC).
12.11.110 Encroachment Permit Required
- The planting, maintaining or removing of any tree in the County right-of-way, and all associated facilities, such as irrigation systems, tree wells, root barriers and supports, are encroachments subject to the permitting and other requirements of this Chapter. It shall be unlawful for any person or utility to so encroach upon the County right-of-way without first obtaining an encroachment permit as provided in this Chapter. The application for an encroachment permit under this Chapter shall be filed with the Director and approved by the Director prior to beginning the proposed activity or work.
- All activities described in subpart A above shall be in conformance with standards and procedures provided by the Director. The Director is authorized to promulgate necessary regulations for the administration and implementation of this Chapter.
- In issuing an encroachment permit under this Chapter, the Director may impose reasonable conditions related to the encroachment activity or work under the provisions of Section 12.11.170 including but not limited to, requiring the property owner or other applicant proposing to perform work in the right-of-way to execute a written maintenance agreement with the County.
- If determined necessary in order to protect the public health, safety or welfare or public convenience, the Director may require a property owner to trim, cleanup, support or repair or perform other maintenance to any tree located within the County's right-of-way which has been planted or installed by the property owner or his or her predecessor. For purposes of this Chapter, the term "predecessor" shall include any prior owner or developer of the property.
- In the event that a property owner fails to perform the work requested by the Director under this Section, the Director may perform the work directly with County personnel or retain others to do that work. Thereafter, the Director shall request reimbursement from the owner for all costs and expenses incurred by the County in performing that work or by having others perform the work. The owner shall reimburse the County for all such costs and expenses within thirty (30) days of receipt of the County's request for reimbursement.
12.11.120 Protection of Trees
- In accordance with the California Government Code, Section 53067, no person shall top, head back, stub or pollard any tree located within the County right-of-way. A tree that has been pollarded in the past may continue to be pollarded in the future so long as the property owner obtains the Director's prior, written approval.
- No person shall attach or keep attached to any tree located within the County right-of-way or to the guard or stakes intended for the protection of such a tree, any rope, wire, nails, tacks, staples, advertising posters, or any other material or item. This Section shall not apply to staking or other material used to secure a tree.
- No person shall cause or allow any poison or other substance harmful to trees to lie, leak, pour, flow or drip upon or into the soil within the dripline of any tree located within the County right-of-way.
- No person shall set fire to or permit any fire to burn when such fire or heat therefrom will injure or damage any tree located within the County right-of-way.
- No person shall operate any device or equipment, such as mechanical weeding devices, in such a manner as to injure or damage any tree located within the County right-of-way.
- If any construction, repair work or other similar activity is proposed in an area adjacent to or in the County right-of-way, the property owner shall take all necessary measures prior to and during the work to protect any tree located in the right of way. The costs of any such protection is the sole responsibility of the property owner and the person or entity performing the work.
12.11.130 Tree Planting, Maintenance and Removal Requirements
- Unless excepted by the Director in writing in the encroachment permit or otherwise, the planting, maintenance or removal of any tree located in the County right-of-way for which an encroachment permit is required under this Chapter shall be performed by a contractor holding a valid license of the appropriate classification as described by the California Business and Professions Code and such other additional valid license(s) required under federal or State law to do the proposed work.
- All maintenance work on trees located in the County right-of-way (including but not limited to trimming or pruning) shall be in compliance with the International Society of Arboriculture Tree Pruning Guidelines and the Standard Practices for Tree Care Operations: Tree, Shrub, and other Woody Plant Maintenance (ANSI A300) or as otherwise provided by the Director in the encroachment permit.
- All maintenance work on trees located in the County right-of-way (including but not limited to trimming or pruning) for purposes of providing clearance for overhead utility facilities shall also be in accordance with the Specification for Utility Line Clearance Pruning and the Preferred Pruning Technique of Alameda County, copies of which are available from the Director. Prior to beginning such work, any person or utility proposing to so encroach shall submit to the Director a written plan prepared by a certified arborist showing the nature and extent of the proposed work.
- The Director shall have the authority to monitor, inspect, maintain, remove, plant or repair any tree located in the right-of-way, if necessary to protect the public health, safety or welfare.
12.11.140 Tree Removal
- It shall be prohibited for any person or utility to remove or cause to be removed any tree from the right-of-way unless so authorized by an encroachment permit issued by the Director pursuant to this Chapter.
- The Director shall have the authority to require that a tree be removed from the right-of-way under any of the following circumstances:
- If the tree is dead or dying or is damaged by storm, accident or disease as to be beyond the point of recuperation as determined by a certified arborist.
- If the tree has damaged the roadway facilities (including but not limited to the sidewalk, curb, gutter and pavement) and further damage cannot be prevented by reasonable tree maintenance procedures such as root pruning or sidewalk/curb realignment.
- If the tree constitutes a hazard to the public.
- In conjunction with an approved development of the adjacent property.
- The Director shall have the authority to approve the removal of a tree from the right-of-way as part of a scheduled tree removal and replacement program or in conjunction with an approved roadway improvement project.
- The removal of a tree from the County right-of-way, when it has been planted by the property owner or his or her predecessor, shall be the responsibility of the property owner who shall bear all costs of the said removal and the associated restoration of the right-of-way. In the event that a property owner fails to respond to a request for removal, the Director shall have the authority to perform such a removal and to bill the property owner for the costs thereof.
- When a tree has been removed from the County right-of-way without a permit, the Director shall have the authority to require the property owner to replace that tree with another tree at the owner's sole expense. The installation and planting of the replacement tree shall conform to the requirements of this Code.
12.11.150 Site Specific Permits
- An encroachment permit under this Chapter shall be referred to as a "Site Specific" permit. An application for a Site Specific Permit shall be made to the County Public Works Agency or its designated agent and shall contain the following information:
- The property address where the work will be performed;
- The name, address and phone number of the property owner; and,
- If different than (2) above, the name, address and phone number of the person who will perform the proposed work;
- A detailed description of the work to be performed including, by way of example, the number and type of trees to be planted, maintained or removed; and the species of the replacement trees, if any; and,
- The approximate date or dates when the work is to be done.
- If the applicant is a homeowners association or other association of property owners or an agent thereof, and the applicant proposes to remove a tree or trees on association property, the applicant shall deliver a written notice by mail or personal delivery to all association members of any tree to be removed. The notice shall identify the tree or trees which are proposed to be removed. Such an applicant shall certify in the application to the Public Works Agency that it has provided the required notice to such members.
- If the applicant is an individual property owner and the subject property where the proposed work is to occur is part of or governed by a homeowners association, the applicant shall deliver a written notice by mail or personal delivery to the association of any tree to be removed. The notice shall identify the tree or trees which are proposed to be removed. Such an applicant shall certify in the application to the Public Works Agency that he or she has provided the required notice to the association.
- The Site Specific permit application must be accompanied by payment of all applicable fees as established under this Chapter by the Director and approved by the County Board of Supervisors. A Site Specific permit is valid for a period of ninety (90) days from the date of issuance, or, if on appeal, ninety (90) days from the final decision. The duration of a Site Specific permit may be extended by the Director for such additional reasonable time period following a request by the permittee showing good cause to allow such an extension.
- Annual Non-Site Specific Permits for Maintenance Only
- Licensed contractors may apply to the Public Works Agency or its designated agent for an encroachment permit under this Chapter which is not site-specific and which is for tree maintenance only. Such a permit shall be referred to as a "Non-Site Specific" permit and shall be for a maximum of twelve (12) months in duration. Such a Non-Site Specific permit shall not be used for tree planting, removal or replacement which requires a Site Specific Permit under this Chapter.
- In lieu of obtaining a Site Specific encroachment permit for tree maintenance, any person proposing to maintain any tree within the right-of-way may retain a licensed contractor who has a valid, existing Non-Site Specific permit at the time the work is to be performed. However, retaining a licensed contractor with a valid, existing Non-Site Specific permit shall not excuse that person proposing to encroach in the right-of-way from any other provision or requirement of this Code unless specifically permitted by the Director in writing before work proceeds.
- In order to obtain a Non-Site Specific permit, a contractor must meet the following requirements:
- The contractor has a valid C27 license with the California State Contractors Licensing Board and such other additional, valid license(s) as required by federal or State law to do the proposed work;
- The contractor has agreed in writing to perform all permitted work in accordance with County-approved International Society of Arboriculture standards and other applicable standards or guidelines approved by the Director; and,
- The contractor has paid any applicable fee established by the Director, and approved by the County Board of Supervisors.
- Any contractor performing work under a Non-Site Specific Permit shall furnish to the Public Works Agency a monthly report signed by an authorized agent of the contractor regarding that work. The report shall contain the following information:
- The property address where the work was performed;
- The name, address and phone number of the property owner;
- If different than (2) above, the name, address and phone number of the person who retained the contractor; and,
- A detailed description of the maintenance work performed including, by way of example, the number and type of trees maintained.
- The report required in subpart D shall be provided to the Public Works Agency on the last day of each month unless no permitted work has been performed in the preceding 30 day period, in which case the permittee shall notify the Public Works Agency that no work was performed in that time period.
12.11.170 Criteria for Issuance of Permit and Conditions
The Director shall consider all relevant information in evaluating a permit application under this Chapter and in imposing reasonable conditions, if any, on the permittee including, but not limited, to:
- The nature and extent of the proposed work;
- The age, condition and health of the existing tree including disease, if any, deadwood, and the tree's stability;
- Danger to the public or to property including adjacent residences and other trees;
- Interference with existing utilities;
- The effect the tree is having on adjacent property or facilities including by way of example sidewalk areas, and whether any effects on the property or facilities can be mitigated by means such as a root barrier or relocation of the facilities;
- Whether the proposed work is necessary in order to allow reasonable use of the property;
- Whether the tree is anchoring or supporting a slope or the adjacent soil and the effects the proposed work would have on slope or soil stability and/or soil erosion;
- The number of other trees in the area and the effect the proposed work would have on the neighborhood an esthetics and general appearance;
- The effect the proposed work would have on surrounding property values; and,
- The proposed efforts, if any, of the applicant to mitigate the effects or results of the proposed work. In the case of proposed tree removal, such mitigation might include, for example, efforts to replace an existing tree or trees with one or more trees of a type consistent with the character of the neighborhood.
12.11.180 Workers' Compensation Insurance
The Director may require that the property owner or any other applicant for a permit under this Chapter, where in the judgment of the Director the estimated value proposed work is one hundred dollars ($100) or more, conform to the workers' compensation insurance requirements of the California Labor Code.
The Director may require that the property owner or any other applicant for a permit under this Chapter furnish evidence of insurance coverage in an amount and to the extent specified by the Director.
12.11.200 Indemnification, Hold Harmless and Defense of County
The Director may require that the property owner or any other applicant for a permit under this Chapter furnish a statement indemnifying the County and agreeing to hold harmless and defend the County in a format and manner specified by the Director. Such a statement may be recorded with the County Recorder's Office.
12.11.210 Emergency Situations
- If personal injury or property damage is imminent due to the hazardous or dangerous condition of a tree located in the right-of-way, the tree may be removed, pruned or trimmed or other necessary action taken without a permit so long as the action taken in response to the emergency situation is reasonable under the circumstances and does not exceed the type of action necessary to address the emergency situation.
- When any emergency work is performed under these provisions, the property owner or person performing the work shall promptly notify the Public Works Agency about the emergency situation, advise the Agency of the work done and apply for a permit under this Chapter for any further work to be performed to address the situation.
- In the case of removal of a tree under such an emergency situation, the person removing the tree shall promptly notify the Public Works Agency about the emergency, advise the Agency of the work performed and promptly apply for a permit under this Chapter to replace the tree, and replace the tree with a 15 gallon tree of like kind or as otherwise ordered by the Director applying the criteria of subpart 12.11.170
12.11.220 Monitoring and Revocation of Permit
- The Director shall have the authority to monitor and inspect any permitted work.
- A permit issued under this Chapter may be revoked by the Director if the conditions of the permit or any provision of this Chapter are being or have been violated or are not fulfilled in a timely manner or the permittee or his or her contractor is violating any other law, statute or ordinance by engaging in or attempting to perform the permitted work.
- Before taking any action to revoke the permit, the Director shall provide written notice of intent to revoke the permit to the permittee of the proposed revocation. The notice shall state the grounds for the proposed revocation and a date, time and place of a hearing in which the permittee will be given an opportunity to respond or otherwise show cause why the permit should not be revoked. The hearing shall be scheduled within fifteen (15) days of the notice of intent to revoke.
- The Director's written notice must be either personally served upon the permittee or mailed to the permittee at the address shown on the application. If personally served, that notice shall be provided to the permittee at least three (3) days before the date of the hearing. If mailed, that notice shall be provided at least five (5) days before the date of the hearing. If the notice is mailed, the five (5) day notice period begins on the date the notice is mailed.
- Upon conclusion of the hearing under this Section, the Director may revoke the permit if the Director finds noncompliance as provided in subpart B above, or if other good cause exists on which to do so. The Director may allow the permitee to proceed on such terms and conditions as are necessary to ensure compliance with the terms of the permit, any other provisions of this Code or with any other law, statute or ordinance.
- The Director's decision under subpart E, above, may be appealed as set forth in this Chapter.
- Any permittee who has had a Non-Site Specific permit revoked shall not be eligible for a new Non-Site Specific permit for a period of six months from the date of the final decision revoking that permit. During that six-month period, the permittee may apply for Site Specific permits. If a permittee has his or her Non-Site Specific permit revoked for a second time, that permittee shall not be eligible for a new Non-Site Specific permit for a period of one year from the date of the final decision revoking that permit for a second time. During that one year period, the permittee may apply for Site Specific permits.
12.11.230 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 the provisions of this Chapter or any condition imposed upon any permit issued hereunder shall be liable to the County for a civil penalty as established by the Director and approved by the Board. If the violation results in damage to a tree, there shall be, in addition to any other applicable penalty, a penalty of three (3) times the damage caused to the tree, or $500, whichever is greater. In the event a tree is removed in violation of any of the provisions of this Chapter, the additional penalty shall be three (3) times the value of the tree. For purposes of calculating the damage to the tree, the most recent edition of the "Guide for Establishing Values of Trees and Other Plants" by the Council of Tree and Landscape Appraisers (in effect of the time of the violation) shall be presumed to provide the appropriate basis for determining damages.
- The foregoing penalties shall be deemed non-exclusive, cumulative and in addition to any other penalty or remedy the County may have at law or in equity, including but not limited to injunctive relief to prevent violations of this Chapter. The County reserves to itself in its discretion the ability to permit an applicant or other person to replace any tree illegally removed, injured or damaged with a new tree of equal or greater size or value in lieu of or in addition to any penalties.
- Civil penalties for violation of this Chapter shall be payable to the County. Civil penalties provided for herein must be paid within 30 days of notice of imposition of the penalty. Untimely payment of civil penalties shall bear interest at the legal rate and may also be subject to an administrative penalty as established by the Public Works Agency and approved by the Board.
The Director is authorized to establish a schedule of fees, subject to approval by the Board of Supervisors, to recover the costs and expenses incidental to the administration or implementation of the provisions of this Chapter. The schedule may include provision for annual or other periodic fee increases based on an appropriate consumer price index applicable to Alameda County.
- The applicant for any permit under this Section may appeal directly to the Director the denial of a permit application or any other decision of the County Public Works Agency related to a permit application or to a permit under this Section or related to any civil penalties provided for in this Section.
- All appeals to the Director must be in writing and must specify the grounds for the appeal. All appeals must also provide an address for the appellant to which the County may send decisions or notices related to the appeal. All such appeals must be filed with the Director no later than thirty (30) days after the earliest of the following dates: (1) the date that written notice of the contested action was mailed to the applicant; or (2) the date the contested action occurred if the applicant had actual or constructive knowledge of the action. The appellant must pay all applicable fees at the time of filing.
- The Director shall refer the appeal to the Tree Advisory Board and direct that the appeal be heard by that Board. The Director shall notify the appellant in writing of the referral of the appeal to the Tree Advisory Board. The Director retains the right to summarily reject appeals which are untimely. However, the Director may refer the appeal to the Tree Advisory Board without waiver of the County's right to reject the appeal due to procedural defects such as untimeliness.
- The Tree Advisory Board shall provide notice of a hearing to the appellant setting forth the date, place and time of the hearing before the Board which hearing shall be conducted. The notice shall schedule the hearing within 30 days of the filing of the appeal or other date agreed to by the Board and the appellant.
- Following a hearing conducted by the Tree Advisory Board, and within five (5) business days of the hearing, the Board shall prepare and deliver its written decision to the appellant and copied to the Director. Service of the written decision and other notices required under this Section may be by personal delivery to the appellant or by regular U.S. mail to the address provided by the appellant in the written appeal.
- The Tree Advisory Board's decision or the Director's decision to summarily deny the appeal for untimeliness may be appealed to the County Board of Supervisors. Such an appeal to the Board of Supervisors must be in writing and must specify the grounds for the appeal. Such an appeal to the Board of Supervisors must be filed with the Clerk of the Board of Supervisors no later than ten (10) days after the date of service of the Director's notice of summary denial of the appeal for untimeliness or, in the case of an appeal heard by the Tree Advisory Board, no later than ten (10) days after the date of service of the Tree Advisory Board's written decision. The appellant must pay all applicable fees at the time of filing.
- Simultaneously with filing of the appeal with the Clerk of the Board of Supervisors, the appellant shall also mail a copy of that appeal to the Director.
- If no timely appeal is filed as provided above, the decision of the Director or the Tree Advisory Board shall be final.
- In the event of an appeal to the Board of Supervisors, the Clerk of the Board shall schedule and provide written notice to appellant of a hearing on that appeal within ninety (90) days of the filing of the appeal or on a date otherwise agreed to by the Board and the appellant. Within sixty (60) days after the hearing before the Board, the Board shall issue its written decision on the appeal, which shall be final, and send a copy of that decision by regular U.S. Mail to appellant.
Should any Section, subpart, clause, provision or any part of this Chapter be declared by a Court of competent jurisdiction to be unconstitutional, beyond the authority of the County or otherwise invalid, such decision shall not affect the validity of the remaining portion or portions of the Section.
12.11.270 Non-Liability of County
Nothing in this Section shall be deemed to impose any liability for damages or a duty of care or maintenance upon the County or its officers or employees. The person who owns the property in which the County right-of-way is located shall have a duty to keep all trees located on his or her property in a safe and healthy condition.
This ordinance shall take effect and be in force thirty (30) days from and after the date of passage and before the expiration of fifteen (15) days after its passage, it shall be published once with the names of the members voting for and against the same in the Inter-City Express, a newspaper published in the County of Alameda.