HomeMy WebLinkAboutMINUTES - 09262000 - D8 s
f
' O' tra
•
1Costa
TO: BOARD OF SUPERVISORS { County
FROM: DENNIS M. BARRY, .MCP ''•.
DIRECTOR OF COMMUNITY DEVELOPMENT rq
DATE: September 26, 2000
SUBJECT: Appeal of San Ramon Valley Regional Planning Commission's Approval of
a Tree Permit to Allow Construction of a Residence within the Dripline
of a Designated Heritage Oak Tree, at 2191 Alameda Diablo, in the
Diablo area, File #Tp990027 (Marilyn Newton - Applicant &
Owner) (District III)
SPECIFIC REQUEST(S) OR RECOMMENDATION S) & BACKGROUND AND JUSTIFICATION
gECOMENDAIJON
Adopt Option A actions listed below.
OP'T'IONS
Qp ; on , (Sustain the CoMMiSsion Approya )
1 . Find that the project is categorically exempt from the
review requirements of the California Environmental
Quality Act.
2 . Deny the Appeal of Dr. Swallow.
3 . Adopt the findings of the San Ramon Valley Regional
Planning Commission as the basis for granting the tree
permit application.
4 . Sustain the Planning Commission' s approval of the tree
permit application.
5 . Direct staff to post with the County Clerk a Notice of
Exemption from the review requirements of CEQA for this
action.
CONTINUED ON .ATTACHMENT: X o YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR -_ -- RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S) :
ACTION OF BOARD ON SAntamber 26, 2000 APPROVED AS RECOMMENDED XX OTHER XX
SEE THE ATTACHED ADDENDUM .FOR BOARD ACTION
AND VOTE
VOTE F SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
UNAN OUS (ABSENT _ _-- _ TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTA : MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact: Bob Dr a [ (9 335-12143
Orig: Community De e pment Department ATTESTED Se tember 26, 2000
cc: Marilyn New n PHIL BATCHELOR, CLERK OF
John Hol THE BOARD OF SUPERVISORS
Dr. E c Swallow A AND O ADMINISTRATOR
Di o MAC
unty Counsel BV DEPUTY
c : l 90027 .bo
d?
Dr. Swallow Appeal of Planning Commission
Tree Permit Approval for
Proposed Residence at 2191 Alameda Diablo, Diablo
File #TP990027
Obtion B (Declare Board's Intent to Grant the A-gxpeal and Deny the
Pro 'e-� ct)
Adopt a motion:
1 . Declaring the Board' s intent to deny the tree permit
application and deny the application.
2 . Directing staff to prepare appropriate findings for Board
consideration.
3 . Continue the hearing at least two weeks to allow for
preparation and distribution of requested findings, prior
to final Board action.
DIABLO MUNICIPAL ADVISORY COUN .IL COMMENTS
The Diablo MAC reviewed this matter prior to the Planning
Commission hearing. In a letter dated June 19, 2000, the MAC
supports the granting of the tree permit for this project subject
to conditions . Those conditions have been added to the conditions
of approval with the consent of the applicant.
FISCAL IMPACT
None.
BACKGROUND
The background for this appeal is reviewed in the July 19, 2000
staff report to the San Ramon Valley Regional Planning Commission.
The hearing before the Commission was based on a 1999 appeal that
had been filed by the owner of the adjoining uphill property, Dr.
Eric Swallow. There is a monarch (approx. 60-inch wide trunk) oak
tree in Dr. Swallow' s front yard that was designated a heritage
tree in 1998 by the Board of Supervisors .
Planning Commission Hear ina
This application was initially (administratively) approved by the
Zoning Administrator, but then appealed by a neighbor, Dr. Swallow.
The appeal was ultimately heard by the San Ramon Valley Regional
Planning Commission at its July 19, 2000 hearing.
At the hearing, the Commission heard testimony from the applicant,
the appellant, and the Diablo Municipal Advisory Council . The
Commission also received the staff report which had three different
arborist reports : one submitted by the applicant; one submitted by
the appellant; and one prepared by an arborist selected by staff .
At the hearing, Dr. Swallow expressed concern that the fragile
condition of the tree might eventually lead to a branch breaking
from the tree and damaging property and/or individuals . He was
seeking indemnity from the applicant for that contingency. He
indicated that the applicant was not willing to allow for such
indemnification; thus, he felt compelled to oppose the granting of
a tree permit .
After taking testimony, the Commission determined that the project
warranted the granting of a tree permit, but added conditions aimed
at improving protection of the tree and seeking cooperation of the
interested parties .
r2_
Proposed oakeoc Residence
File #TP990027
Errata - Identification of Abxolication File Number
It should be noted that the staff report (and notice) for the
hearing had incorrectly identified the file number as #TP000027 ,
rather than its correct number, #TP990027 . There is no evidence
that this error led to any confusion on the part of any potentially
interested parties .
TSR. SWALLQW APPEAL OF-COMMISSION' S DECISION
In a letter dated August 1, 2000, Dr. Swallow appealed the Planning
Commission' s decision to the Board of Supervisors . The letter
indicates that he feels that the Commissioners did not appreciate
the hazardous condition of the tree.
DISCUSSION
The appeal letter contains no substantial information on any
shortcomings of the Planning Commission' s action. However, the
appellant, Dr. Swallow, did contact staff and indicate that he
continues to be concerned about liability he might face in the
event that the tree topples (or branch falls) at some time in the
future . At the Planning Commission hearing, he indicated that he
had unsuccessfully tried to obtain the consent of the applicant to
hold him harmless in the event that the tree should lose a branch
or otherwise cause damage to the applicant's property or persons on
the property.
All of the arborist reports show that the tree has some health
problems . Still, none of the reports recommend that the tree be
removed at the present time. Further, the Heritage Tree and Tree
Protection Ordinances are not intended to guard property owners
from future claims of damage. It is not a reason recognized by
either the Tree Protection Ordinance or Heritage Tree Ordinance for
denial of a tree permit application.
In the future, should one of the property owners feel that the
condition of the tree warrants alteration or even removal, then
they can apply for a tree permit to the County for that purpose .
Moreover, were they to provide the County with acceptable evidence
(e.g. , report from a licensed arborist) that the condition of the
tree constituted a hazard requiring immediate action, the
ordinances allow tree alterations without having to first obtain a
tree permit.
Both the MAC and the Planning Commission concluded that it would
be difficult to allow for reasonable development of this
lot with any other site plan that would not pose greater land use
concerns than those posed by the proposed project. The arborist
retained by the County concluded that the project could
be developed with minimal impact to the existing tree.
Consequently, both of those entities voted to support the project .
Similarly, staff sees no reason to deviate from the approval
decision issued by the Planning Commission, and recommends that it
be sustained pursuant to Option A actions listed above.
POSSIBLE ALTFB'RTp,TIYE BOARD ACTION
On the other hand, should the Board determine that one or more
findings in the Tree Ordinance justifying denial of a tree permit
can reasonably be made, then the Board could determine it
appropriate to grant the appeal and initiate action to deny the
tree permit. In this instance, it would be appropriate for staff
-3-
Dr. Swallow Appeal of Planning Commission
Tree Permit Approval for
Proposed Residence at 2191 Alameda Diablo, Diablo
File #TP990027
to prepare alternative findings for Board consideration and
adoption prior to final Board action. In this regard, the Board
could direct its intent to deny and direct staff to prepare
findings for Board consideration at a continued hearing as provided
in Option B actions listed above.
Were the Board to deny the tree permit, then the applicant would
have three choices .
• Modify the proposed residential plans to avoid any alterations
(filling, grading, or trenching) within the dripline of the
heritage tree, so as to avoid any tree permit requirement;
• Wait a year, and reapply for the same or similar residential
design; OR,
• Modify the proposed residential plans in a manner that allows
the Community Development Director to find that circumstances
have materially changed since the earlier application was
first filed, and reapply for a tree permit . Materially
changed circumstances would include that the proposed
residential design is significantly different from that
originally applied for. (Ref . Section 26-2 . 2003 of the Ord.
Code)
-4-
n
ADDENDUM TO ITEM D.8
September 26, 2004 Agenda
On this date,the Board of Supervisors considered the hearing on the appeal by Mr. and Mrs. Eric
Swallow(Appellants) from the decision of the San Ramon'Valley Regional Planning
Commission, acting as the Board of Appeals, on the request by Marilyn Newton(Applicant) on
the conditional approval of a tree permit to allow development of a new residence within the
dripline of a designated heritage and code-protected tree,with a trunk diameter of approximately
67 inches. The site is located at 2191 Alameda Diablo,Diablo area. (County File#TP 99-0004).
Robert Drake of the Community Development Department presented the staff report. Those
present included Dennis Barry,Director of Community Development and Silvano Marchesi,
Chief Assistant County Counsel.
Mr. Drake noted that the County hired an independent Arborist, Michael D. Baefsky,Baefsky&
Associates, Landscape Ecology Consultants,who presented his assessment of the tree in
question.
The hearing was opened, and Marilyn Newton,Applicant, 255 Bramblewood Court, Danville,
offered comments. Those desiring to speak having been heard,the Board discussed the matter.
Following Board discussion, Supervisor Gerber recommended that the Board approve Option A
of the staff report,which would deny the appeal and approve the application; that the Conditions
of Approval be amended as indicated by Robert Drake; and that the hearing be closed.
Supervisor Gioia seconded the motion, and the vote was unanimous.
IT IS BY THE BOARD ORDERED that the hearing is CLOSED; Option A is APPROVED; and
the revised Conditions of Approval as attached are APPROVED.
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
APPROVED PERMIT
APPLICANT: Marilyn Newton APPLICATION NO. TP990027
255 Bramblewood Court
Danville,CA 94526
ASSESSOR'S PARCEL NO. 195-250-044
OWNER: Same as Applicant ZONING DISTRICT: R.-20
APPROVED DATE: September 26,
2000
EFFECTIVE DATE: September 26,
2000
A permit for:
A Tree Permit to allow development of a new residence within the dripline of a 67-inch oak tree which has
been designated as a heritage tree is hereby GRANTED,subject to the attached conditions.
DENNIS M.BARRY,AICD
Director
Community Development Department
By:
Deputy Zoning Administrator
Unless otherwise provided,THIS PERMIT WILL EXPIRE three months from the effective date if the use
allowed by this permit is not established within that time.
PLEASE NOTE THE EFFECTIVE DATE,as no further notification will be sent by this office.
FINDINGS AND CONDITIONS OF APPROVAL FOR TREE PERMIT NO.
TP990027 (Marilyn Newton, Applicant & Owner) PER SEPTEMBER 26,
2000 BOARD OF SUPERVISORS APPROVAL
Criteria for Review of the Tree permit
A. Required Factors for Granting Permit. The Zoning Administrator is satisfied that the
following factors as provided by County Code Section 816-6.8010 for granting a tree
permit have been satisfied as marked;
— 1. The arborist report indicates that the subject trees are in poor health and cannot be
saved.
2. The tree is a public nuisance and is causing damage to public utilities or streets
and sidewalks that cannot be mitigated by some other means.
3. The tree is in danger of falling and cannot be saved by some other means.
4. The tree is damaging existing private improvements on the lot such as a building
foundation,walls,patios, decks,roofs,retaining walls, etc.
5. The tree is a species known to be highly combustible and is determined to be a
fire hazard.
6. The proposed tree species or the formm of the tree does not merit saving.
X 7. Reasonable development of the property would require the alteration or removal
of the tree and this development could not be reasonably accommodated on
another area of the lot.
8. The tree is a species known to develop weaknesses that affect the health of the
tree or the safety of people and property. These species characteristics include but
are not limited to short-lived,weak wooded and subject to limb breakage, shallow
rooted and subject to toppling.
x 9. Where the arborist or forester report has been required, and the Director is
satisfied that the issuance of a permit will not negatively affect the sustainability
of the resource.
6_ 10. None of the above factors apply.
'Oe 11
B. Required Factors for Denying a Tree Permit. The Zoning Administrator is satisfied
that the following factors as provided by County Code Section 815-5.8010 for denying
(or modifying) a tree permit application have been satisfied as marked:
1. The applicant seeks permission for the alteration or removal of a healthy tree that
can be avoided by reasonable redesign of the site plan prior to project approval
(for non-discretionary permits).
2. It is reasonably likely that alteration or removal of a healthy tree will cause
problems with drainage, erosion control, land suitability,windscreen,visual
screening, and/or privacy and said problems cannot be mitigated as part of the
proposed removal of the tree.
3. The tree to be removed is a member of a group of trees in which each tree is
dependent upon the others for survival.
_ 4. The value of the tree to the neighborhood in terms of visual effect,wind
screening,privacy and neighboring vegetation is greater than the hardship to the
owner.
5. If the permit involves trenching or grading and there are other reasonable
alternatives including an alternate route,use of retaining walls,use of pier and
grade beam foundations and/or relocating site improvements.
5. Any other reasonable and relevant factors specified by the Community
Development Director.
x 7. None of the above factors apply.
-2-
CONDITIONS OF APPROVAL
l. General-The application for Tree Removal is approved based on the following documents:
• Tree survey map;
• Report on the Project by Patrick Stewart,Atlas Tree Service,Inc.,a certified arborist,
dated 2/22/99;
• Report on the Project by Mike Baefsky of Baefsky&Associates
Except as otherwise specified,development shall be in accord with the recommendations of
the arborist reports which are within the legal authority of the applicant to perform. All
grading,site and development plans shall clearly indicate trees proposed for removal,altered
or otherwise affected by development construction. The tree information on grading and
development plans shall indicate the number, size, species, assigned tree number
corresponding to the arborist report discussion, and location of the dripline of all trees on
the property.
This permit shall be valid for a period of three months and may be renewed for additional
periods by the Director of Community Development upon request by the applicant.
Landscape Plan - Prior to issuance of a building permit, the applicant shall submit a
landscape/irrigation plan which has been reviewed and accepted by a certified arborist for the
review and approval of the Zoning Administrator. The plan shall cover the area between the
rear of the Newton residence (existing rock wall) to #2235 Caballo Ranchero (Swallow
property).
Roof Design.and Materials-Prior to issuance of a building permit,the applicant shall submit
a roof plan for the review and approval of the Zoning Administrator. The roof shall be
designed so as to minimize reflective and radiated heat. A certified arborist shall review the
proposed roof for compliance with this requirement.
Modification of Can-Site Turnaround Design - The turnaround area that is proposed to be
located within the dripline of the designated heritage tree shall be improved with
decomposed granite or other permeable material, subject to review and approval of the
Zoning Administrator.
Contingency Restitution Should Altered Trees Be Damaged
2. Trees to be preserved but Altered - Pursuant to the conclusions of the arborist report,
proposed improvements within the root zone of trees noted on the site plan to be preserved
have been determined to be feasible and still allow for preservation provided that the
recommendations of the arborist are followed.
-3-
Pursuant to the requirements of Section 816-6.1204 of the Tree Protection and Preservation
Ordinance, to address the possibility that construction activity nevertheless damages these
trees, the applicant shall provide the County with a security (e.g., bond, cash deposit) to
allow for replacement of trees intended to be preserved that are significantly damaged by
construction activity. The security shall be based on:
A. Required Security-The applicant shall provide a bond in the amount$10,000 to the
County Community Development Department. The bond shall be retained by the
County and can be used at the discretion of the Zoning Administrator with input from
the licensed arborist selected to oversee the work upon a finding that there has been
significant damage to the tree done by construction of the proposed residence. If the
Zoning Administrator overrides the recommendation of the selected arborist,he/she
must state in writing a compelling reason for that action.
B. Acceptance of a Security-The security shall be subject to the review and approval of
the Zoning Administrator.
C. Initial Deposit for Processina of Security- The County ordinance requires that the
applicant cover all time and material costs of staff for processing a tree protection
security(Code S-060B). The Applicant shall pay an initial fee deposit of$100 at
time of submittal of a security.
The security shall be retained by the County up to 24 months following the completion of the
tree alteration improvements. In the event that the Zoning Administrator determines that
trees intended to be protected have been damaged by development activity,and the Zoning
Administrator determines that the applicant has not been diligent in providing reasonable
restitution of the damaged trees,then the Zoning Administrator mayrequire that all orpart of
the security be used to provide for mitigation of the damaged trees.
At least 18 months following the completion o,f'work within the dripline of trees, the
applicant's arborist shall inspect the trees for any significant damage from construction
activity, and submit a report on his/her conclusions on the health of the trees and, if
appropriate,any recommendations including mer methods required for tree protection to
the Community Development Department.
Construction Period Restrictions
-4-
3. Site Preparation - Prior to the start of any clearing, stockpiling, trenching, grading,
compaction, paving or change in ground elevation on site with trees to be preserved, the
Applicant shall install fencing at or beyond the dripline of all areas adjacent to or in the area
to be altered and remain in place for the duration of construction activity in the vicinity of the
trees. Prior to grading or issuance of any permits, the fences may be inspected and the
location thereof approved by appropriate County staff Construction plans shall stipulate on
their face where temporary fencing intended to trees to be protected is to be placed,and that
the required fencing shall be installed prior to the commencement of any construction
activity.
4. Construction Period Restrictions-No grading,compaction,stockpiling,trenching,paving or
change in ground elevation shall be permitted within the dripline of any existing mature tree
other than the trees approved for alteration unless indicated on the improvement plans
approved by the county and addressed in any required report prepared by an arborist. If
grading or construction is approved within the dripline of a tree to be saved,an arborist may
be required to be present during grading operations. The arborist shall have the authority to
require protective measures to protect the roots. Upon the completion of grading and
construction, an involved arborist shall prepare a report outlining farther methods required
for tree protection if any are required. All arborist expense shall be borne by the developer
and applicant unless otherwise provided by the development's conditions of approval.
5. Prohibition of Parking - No parking or storing vehicles, equipment, machinery or
construction materials, construction trailers and no dumping of oils or chemicals shall be
permitted within the drip line of any tree to be saved.
6. Construction Tree Damage-The development's property owner or developer shall notify the
Community Development Department of any damage that occurs to any tree during the
construction process. The owner or developer shall repair any damage as determined by an
arborist designated by the Director of Community Development.
Any tree not approved for destruction or removal that dies or is significantly damaged as a
result of construction or grading shall be replaced with a tree or trees of equivalent size and
of a species as approved by the Director of Community Development to be reasonably
appropriate for the particular situation.
7. Supervision of Work by an Arborist-All work that encroaches within the dripline of a tree
to be preserved shall be conducted under the supervision of a certified arborist. The arborist
that is to oversee the work shall be selected by mutual agreement of the two property owners
of#2191 Alameda Diablo(Newton)and#2235 Caballo Ranchero(Swallow),or if there is no
agreement,with final selection by the Zoning Administrator. A recommended arborist shall
be present during any construction involving trenching and/or drilling. No modifications to
the subject tree shall be made without prior approval of the arborist.
-5-
The times and approval stages for oversight by the arborist doing the work shall be set forth
by the arborist and subject to review and approval by the Zoning Administrator prior to
clearance of a building permit by the.Zoning Administrator.
Arborist Expense
8. Arborist Expense-The expenses associated with all required arborist services shall be borne
by the developer and/or property owner.
Payment of Any Required Supplemental Fees
9. Pavment ofAny Due SWlemental Application Fees-This application is subject to an initial
application fee deposit of$300 which was paid with the application submittal,plus time and
material costs if the application review expenses exceeds the initial fee deposit. Any
additional fee due must be paid prior to issuance of a building permit,commencement of tree
alteration work, or 60 days of the effective date of this permit whichever occurs first. The
fees include costs through permit issuance plus five working days for file preparation. The
applicant or owner may obtain current costs by contacting the project planner.A bill will be
mailed to the applicant shortly after permit issuance in the event that additional fees are due.
C Awpdoc2\tp990027.coa
RD\
Rev.9/26/00
-6-