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12-13-2011 CC Rpt A16 THE ATTACHED ORDINANCE NO. 249 WAS CONSIDERED BY THE CITY COUNCIL AT THEIR NOVEMBER 22, 2011 MEETING; THE ORDINANCE IS NOW BEING PRESENTED FOR ADOPTION. ORDINANCE NO. 249 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, CALIFORNIA, ADDING CHAPTER 1226 TO THE CHINO HILLS MUNICIPAL CODE CONCERNING THE PROTECTION OF CITY-OWNED TREES AND AMENDING CHAPTER 8.12 AND SECTION 12.12.010 OF THE CHINO HILLS MUNICIPAL CODE. WHEREAS, the City recognizes its trees as one of its most valuable public resources; and WHEREAS; the City currently owns in excess of 40,000 trees that are located on City owned property or public easements; and WHEREAS, the City recognizes that the number of City-owned trees will increase in the future and wants to ensure that these assets are protected except in cases where such trees are deemed to be dead, dying, seriously diseased, dangerous to persons or property or causing damage to private property; and WHEREAS, the City recognizes the need to remove public trees for specific reasons and this ordinance will define that process; and WHEREAS, the City Council does find and determine that the adoption of this ordinance is categorically exempt under the California Environmental Quality Act per Section 15061(b)(3) and 15308, because this ordinance is a regulatory act to assure the maintenance, restoration, or enhancement of a natural resource or the environment where regulations provide for the protection of the environment. THE CITY COUNCIL OF THE CITY OF CHINO HILLS DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. A new Chapter 12.26 is hereby added to Title 12 of the Chino Hills Municipal Code in its entirety to read as follows: Section 12.26.010 Purpose. The purpose of this chapter is to preserve and protect all varieties of trees planted by the City or caused to be planted by the City on publicly-owned property or right-of-way easements. Such trees are natural aesthetic resources which help define the character of the City. The City has spent considerable resources acquiring and maintaining public trees and it is of paramount importance that these assets be protected. Page 1 of 8 1 -2 Section 12.26.020 Definitions. Definitions as used in this chapter have the following meetings: "Defensible space" means the area within the perimeter of a parcel, generally 100 feet from a structure, where basic wildfire protection practices are implemented, providing the key point of defense from an approaching wildfire or escaping structure fire. "Director" means the Public Works Director or his/her designee. "Dripline" is the outer limit of the tree's canopy extended down to ground level. "Ladder fuels" means lower parts of a tree that can carry a fire vertically between or within a fuel type. "Maintain" or"Maintenance" means and includes root pruning, trimming, spraying, watering, fertilizing, mulching, treating for disease or injury, or any other similar act, which promotes growth, health, beauty and life of a street or publicly owned tree. This definition also includes the periodic elimination of ladder fuels. "Parkway" means that area from the back of the curb to the edge of the right-of-way, or if no curb exists, that area from the edge of the pavement to the edge of the right-of- way. "Person" means any individual, firm, association, organization, partnership, business, trust company, corporation or other entity. "Property Owner" or "Owner" means any person holding title to real property abutting upon a right-of-way, or any agent thereof, as well as any person who has the legal right to occupy the property to the exclusion of others. For the purposes of this chapter, prime responsibility for compliance shall rest upon whichever of such persons is the occupant or user of the property and the ultimate responsibility shall rest upon the property owner. "Public Property" shall mean any real property owned by, leased to, or under the control of the City of Chino Hills or any other public entity. "Remove" includes any act which will cause a protected tree to die, or to be in jeopardy as determined by a certified arborist. "Right-of-way" shall mean the entirety of that area dedicated for public street and highway purposes. "Sidewalk" for the purposes of this chapter shall mean any improved or unimproved pedestrian walkway within a right-of-way adjacent to a street. Page 2 of 8 1 -3 "Street Tree," or "Public Tree," or "City Tree" means any tree which is located within any public park, City easement, or on any other City-owned property or right-of-way. Section 12.26.030 Permit Required for Removal, Replacement or New Planting. No person shall remove or replace any City tree from, in, or upon, any public street or right-of-way, without having first obtained a permit as required by this chapter. This includes the planting of a new tree. Notwithstanding any other provision of this code, any actions taken pursuant to a permit issued pursuant to this chapter shall be deemed not to be in violation of this code. A property owner who requests removal of a City tree and whose request is approved by the Director shall pay to the City the actual costs of the City tree removal and replacement/mitigation. Before a City tree is removed pursuant to this chapter at the request of a property owner, the property owner shall submit to the City a deposit equal to the amount determined by the Director to be the estimated cost to remove, replace or mitigate the City tree. Following completion of the tree removal and replacement/ mitigation, the Director will refund to the property owner any portion of the deposit which exceeds the actual costs of the City tree removal and replacement. In the event that the actual cost of City tree removal and replacement/mitigation exceeds the amount of the deposit, the property owner shall pay the difference to the City within ninety (90) days of receipt of billing. Section 12.26.040 Permits The following requirements shall apply to the relocation, removal or new planting of City trees within the parkway of a street: A. The Director, or his/her designee, is authorized and directed to prepare and file in his/her office standards and specifications for the planting, removal and relocation, including maintenance, of City trees within the parkways of public streets. B. Every person planting or arranging for the planting of City trees shall obtain a permit required by this chapter from the Director, or his/her designee and perform the work in accordance with established City standards and specifications, C. Every person removing or arranging for the removal, including relocation, of a City tree(s) shall obtain a permit required by this chapter from the Director and perform the work in accordance with City specifications and standards, including mitigation. Section 12.26.050 Permit Fees. Fees for permits required by this chapter shall be determined by resolution of the City Council. Page 3 of 8 1-4 Section 12.26.060 Permits for Public Utilities and Public Agencies. Any person doing business as a public utility, subject to the jurisdiction of the Public Utilities Commission of the State, and any duly constituted public agency, authorized to provide and providing utilities service, may be issued a permit. Such permit will authorize such person to trim, brace, remove or perform other such acts with respect to Street trees or trees which grow on private property and encroach upon rights-of-way or public places as may be necessary to comply with the safety regulations of the Commission. Section 12.26.070 Public Liability and Property Damage Insurance Required. Before a permit may be issued under the provisions of this chapter to any person engaged in the business of removing trees in the City, the permit applicant shall file a certificate showing adequate public liability and property damage insurance; the amount shall be fixed by the Director before the permit is issued. Such policies or certificates shall be filed with the City Clerk showing the City as an additional insured. Section 12.26.080 Liability. Nothing in this chapter shall be deemed to impose any liability upon the City, its officers, or employees. No duty of care or maintenance is imposed upon the City, its officers or employees with reference to private property and park way easements. No private property owner or other person in possession of private property is relieved from the duties to keep City trees in a safe condition on their property. This chapter does not relieve the owner or possessor of private property from the duty to keep City trees, subject to this chapter, in such a condition as to prevent the City tree from constituting a hazard or dangerous condition to persons or property Section 12.26.090 Inspection and Correction of Hazards. An agent of the City may inspect any tree adjacent to or overhanging any public street in the City to determine whether the same, or any portion thereof, is in such condition as to constitute a hazard or impediment to the safety of anyone traveling on such public street. Any tree or part thereof growing upon private property but overhanging or interfering with use of any right-of-way that endangers the life, health, safety or property of the public shall be declared a public nuisance. This includes trees that are not in compliance with State and local fire codes dealing with defensible space and ladder fuels hazards. Such a public nuisance can be abated through any legal remedy including through any of the procedures provided for in Chapter 8.12 of this code. Page 4 of 8 1 -5 Section 12.26.100 Prohibited Acts. No unauthorized person shall injure, deface or destroy any City tree by any means, including but not limited to, the following: 1. Constructing a sidewalk, or other non-porous material, that shuts off light, air or water to the roots of the City tree within the dripline. 2. Piling building material, equipment or other substance around any City tree so as to cause injury; 3. Pouring any deleterious matter on or around any City tree or on the ground, or on any lawn in such a manner as to damage the tree; 4. By cutting, breaking, defacing or damaging a City tree in any manner whatsoever. 5. Attaching any sign, poster, or other object to a City tree. Section 12.26.110 Violations--Misdemeanor Any person who violates any provisions of this chapter is guilty of a misdemeanor violation of the Municipal Code. Each tree removed in violation of this chapter shall constitute a separate misdemeanor offense. Section 12.26.120 Appeal Any person aggrieved by the action of the Director, acting under this chapter, may appeal, by written application to the Director if such appeal is filed with the Public Works Director within 15 days of the Director's decision. If the appeal application is denied by the Director, the applicant may appeal the decision to the City Manager or his designee whose decision shall be final. This appeal must be filed with the City Manager's office within 15 days of the Director's decision. Notwithstanding the Chapter 1.20 of this code, the City Manager's decision shall be final and shall not be subject to appeal to the City Council. Section 12.26.130 Emergency Removals. Notwithstanding the requirements of this chapter, in the case of an emergency caused by a City tree being in a hazardous or dangerous condition posing an immediate threat to person or property, the Director, his or her designee, or any member of the Police Department or Fire Department (as that term is defined in Title 8 of this code) may authorize removal of a City tree." SECTION 2. Subsection 1 of Section 8.12.020 is hereby amended to read as follows: "Any violation of law including the Chino Hills Municipal Code and any section of the City Ordinance 92-02, which adopted by reference the San Bernardino County Code, and other relevant noncodified San Bernardino County ordinances;" Page 5 of 8 1 -6 SECTION 3. Section 12.12.010 (A) 5 is hereby amended to read as follows: A. A permit is required and may be issued by the Director, as provided in this chapter, authorizing the permittee to do any of the following acts: 5. Plant, remove, cut, cut down, injure, or destroy any tree, shrub, flower or other vegetation growing within any highway; SECTION 4. Section 12.12.010 is hereby amended to add Subsection D to read as follows: D. Notwithstanding the above, if a permit is required by Chapter 1226 of this code for the removal of (a) city-owned tree(s), then no encroachment permit is required by this chapter for the removal of such tree(s)." SECTION 5. Section 12.12.010 Permitted Acts is amended to read as follows: A. A permit is required and may be issued by the Director, as provided in this chapter, authorizing the permittee to do any of the following acts: 5. Plant, remove, cut, cut down, injure, or destroy any tree, shrub, flower or other vegetation growing within any highway; SECTION 6. Section 12.12.020 Application is amended to read as follows: A. An application for a permit pursuant to the provisions of this chapter shall be made in writing to the Director pursuant to Section 12.26.030. SECTION 7. Section 12.16.070.0 Maintenance is hereby amended as follows: C. The permittee shall exercise reasonable care to maintain any landscaping and trees within the road right-of-way and to immediately repair and/or replace any portion of such landscaping and trees which become damaged as a result of the work done under a permit issued pursuant to this title. A permit is required for removal of a City tree pursuant to Section 12.26.040. SECTION 8. Upon the effective date of this Ordinance, the provisions hereof shall supersede any inconsistent or conflicting provisions of the San Bernardino County Code as the same were adopted by reference by City Ordinances Nos. 91-01 and 92- 02. Page 6 of 8 1 -7 SECTION 9. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portions thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 10, The City Clerk shall certify as to the adoption of this Ordinance and shall cause a summary thereof to be published within fifteen (15) days of the adoption and shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933. PASSED, APPROVED, AND ADOPTED this 131h day of December, 2011. ART BENNETT, MAYOR A I I EST: MARY M. McDUFFEE, CITY CLERK APPROVED AS TO FORM: MARK D. HENSLEY, CITY ATTORNEY Page 7 of 8 1-8