Novato Municipal Code Ch. XVII Trees and Shrubs

17-1.1 Purpose. The city recognizes that trees contribute in many important ways to the health, safety, and welfare of all of Novato's citizens. Besides their aesthetic benefits, they offer windbreaks, act as filters for airborne pollutants, absorb carbon dioxide and release oxygen, provide erosion control, and prevent bank and slope failure through their extensive root systems. All trees perform these functions not only for the property on which they occur but for all people living in their vicinity. They are key elements in a living system whose boundaries do not conform to the arbitrary boundaries of private property. Trees of significant size or age are part of the natural heritage of all Novato's citizens upon which the continued health and welfare of the community depends. Also part of such valued natural heritage are other trees, not necessarily as large, which form an important element of the community's history.

Significant portions of the city are covered by oak, madrone and other trees which contribute greatly to the scenic beauty of the city. The majority of property within the city is on hillside and sloping terrain. The indiscriminate removal of trees would destroy the scenic beauty, contribute to erosion and stream sedimentation, increase slope hazards, reduce property values, increase the cost of construction and maintenance of drainage systems through the increased flow and diversion of surface waters and adversely affect the local economy by reducing the attractiveness and desirability of the area as a place to live, work and visit.

For these reasons, the city finds it necessary to protect the public health, safety and welfare to enact regulations controlling the removal of trees within the city protect certain trees that are an essential part of Novato's natural heritage.

(Ord. No. 1441 § 2(E))

(Ord. No. 1576, § 2 (Exh. A), 10-23-12)

17-1.2 Definitions. As used in this chapter:

a. "Alter" shall mean to take action in a way that could reasonably be said to diminish the vigor of the tree.

b. "Director" shall mean the director of the Novato department of community development or authorized representative.

c. "Heritage tree" shall mean any native or non-native woody plant: (1) characterized by having a major trunk or trunks of a diameter of 24 inches (circumference of 75 inches) or more measured at 24 inches above existing grade; or (2) any other so designated by the city council based upon a finding that it has special historical associations due to its age, character, species, or location.

d. "Income Parcel" shall mean every lot or parcel zoned for multifamily residential, commercial, industrial or office use.

e. "Tree" shall mean any woody native or non-native plant characterized by having a major trunk or trunks of a diameter of six inches (circumference of 19 inches) or more, measured at 24 inches above existing grade.

f. "Undeveloped Parcel" shall mean every lot or parcel irrespective of zoning which meets one of the following factors:

1. Is able to be further subdivided or developed, as defined in the city's zoning and land subdivision ordinances; or

2. Is not occupied by a primary structure as defined in the zoning ordinance.

(Ord. No. 1441 § 2(E); Ord. No. 1576, § 2 (Exh. A), 10-23-2012)

17-1.3 Alteration or Removal of Heritage Trees Prohibited Without a Permit. It shall be unlawful for any person or group of persons to alter or remove or cause to be altered or removed, one or more heritage trees on any parcel in the city without a permit. These provisions do not apply to trees which are dead or fallen or to activities undertaken or authorized by local, state and federal agencies to control sudden death oak syndrome or other similar vectors.

(Ord. No. 1441 § 2(E))

(Ord. No. 1576, § 2 (Exh. A), 10-23-12)

17-1.4 Tree Permits.

a. Any person desiring to alter or remove a heritage tree on any parcel or remove one or more trees on any undeveloped parcel in the city shall apply in writing to the director for a permit to do so. Such application shall contain a site plan identifying the location of the trees to be altered or removed; the number and species of the trees; size of each tree trunk's diameter, as measured 24 inches above existing grade; a statement of the reason for alteration or removal; and, identification of the person or company who will do the work. The director may also require documentation from a licensed tree surgeon, certified arborist, landscape architect or similarly licensed professional as to the health, quality and desirability of the tree or trees in question, and any other information determined relevant by the director.

b. Upon receipt of a complete application, the director shall determine whether the application presents issues of sufficient public concern to warrant a public hearing by the planning commission in lieu of the action by the director. Prior to any action on a tree removal permit, public noticing shall be required in compliance with the procedures as set forth in section 19.58 of the zoning ordinance.

c. The permit may be granted if it is determined that the subject tree (or trees) is, due to its size, type, condition and location:

1. A hazard to individuals or existing structures or to the reasonable use of the subject property due to poor health or physical instability; or

2. A nuisance by causing damage to improvements, such as building foundations, retaining walls, utilities, drainage facilities, roadways, sidewalks, driveways, patios, and decks.

The permit may be issued subject to such conditions as are deemed reasonably necessary to accomplish the objectives of this chapter, including, without limitation, requirements for protecting and maintaining the trees to be saved by: establishing root protection zones, grading limits, cut and fill restrictions, installing temporary barricades, special provisions for drainage, special construction measures, on-site inspections by tree specialist during construction, and requirements for replacing removed trees with trees of reasonably comparable quality.

d. If the permit is granted, there shall be no alteration or removal undertaken for a ten-calendar-day period during which time the decision may be appealed in accordance with the provisions of this section.

e. The director may waive public notice and the appeal process otherwise required by this chapter, and immediately issue the permit with a finding that the tree constitutes a hazard or threat to the public health and safety or property in the vicinity in cases where:

1. The tree (or trees) in question is dying, diseased or has been substantially damaged and will imminently threaten the health, safety, or property improvements in the immediate vicinity and such disease or threat is verified in writing by a licensed tree surgeon, certified arborist, landscape architect or similar licensed professional;

2. The tree (or trees) in question is classified as a pyrophyte, including Monterey Pine, Bishop Pine, Acacia species, and Eucalyptus species; or

3. Tree removal or alteration is by a public agency to provide for the routine maintenance of public land.

f. Public noticing shall not be required for maintenance or minor pruning of heritage trees or when tree removal or alteration has been considered as part of an otherwise noticed director action or public hearing or as part of an approved fire management plan.

17-1.5 Appeal. Any decision on a tree permit made by the director of planning commission may be appealed by any interested party to the city council. Such appeal shall be submitted and reviewed in compliance with section 19.54 of the zoning ordinance.

(Ord. No. 1441 § 2(E); Ord. No. 1576, § 2 (Exh. A), 10-23-12)

The removal or alteration of native trees and woodlands shall also be in conformance with the definitions and provisions of chapter 19, section 19.39 (woodland and tree preservation).

(Ord. No. 1441 § 2(E))

(Ord. No. 1576, § 2 (Exh. A), 10-23-12)

17-3.1 Declaration of Policy. It is hereby declared to be the policy of the city to regulate and control the planting, transplanting, removal, maintenance and protection of trees and shrubs in public places in the city, and trees and shrubs adjacent to public places, in order to eliminate and guard against dangerous conditions which may result in property damage or injury to persons using streets, alleys, sidewalks, or any other property of the city; to promote and enhance the beauty and general welfare of the city; to prevent damage to any street, sidewalks, or other property; to protect trees and shrubs located in public areas from undesirable or unsafe planting, removal, treatment, and maintenance practices; and to guard against spread of disease or pests within the city.

(Ord. No. 1441 § 2(E))

17-3.2 Definitions. As used in this section:

a. "City" shall mean the City of Novato, acting by and through its authorized representatives.

b. "City engineer" shall mean the city engineer of the City of Novato or authorized representative.

c. "Director" shall mean the community development director of the City of Novato or authorized representative.

d. "Hazardous trees" are defined as those that present an immediate threat to the electric facilities and if not remedied would potentially start afire, or cause property damage and/or personal injury.

e. "Property Owner" shall include the legal owner of real property fronting on any street of the city and any occupant in possession of such real property.

f. "Shrub" shall mean and include any woody perennial plant, normally low, several stemmed, adaptable to shaping, trimming and pruning without injury within the area planted.

g. "Street trees and shrubs" shall mean all trees or shrubs now located or to be planted on any park, playground or other property owned or controlled by the city, or upon or adjacent to any public street, parkway, alley, sidewalks or highway within any portion of the public right-of-way.

h. "Tree" shall mean and include any woody perennial plant having a single main axis or stem commonly achieving ten feet in height and capable of shaping and pruning to develop a branch-free trunk at least nine feet in height.

(Ord. No. 1441 § 2(E))

17-3.3 Enforcing Authority. The department of community development shall be charged with the enforcement of this section.

(Ord. No. 1441 § 2(E))

17-3.4 Approved Trees and Shrubs. The city engineer and community development director are hereby charged with the duty of promptly determining the types and species of street trees and shrubs suitable and desirable for planting and the areas in which and conditions under which such street trees and shrubs shall be planted and maintained within the public areas of the city. They shall also determine the types and species of trees and shrubs suitable and desirable for planting on private property, which may project over or under the public rights-of-way. When such determination has been made, the director shall report the findings in writing to the city council. When approved by the city council this report shall be known as the "Approved Street Tree List," shall be placed on file in the office of the city clerk and shall thereafter be the official determination of the director. Revisions or changes in said "Approved Street Tree List" may be made from time to time in the manner described hereinabove.

All trees and shrubs hereafter planted in or which may project over or under the public rights-of-way of the city must be on the "Approved Street Tree List," unless a written permit from the director shall have first been obtained to plant a tree not on this list.

Any trees that will reach a height greater than twenty-five feet at maturity shall not be placed within 10 feet (measured horizontally of utility lines/poles) without prior written approval of the community development director. The director shall consult with the utility company having jurisdiction before approving the permit.

(Ord. No. 1441 § 2(E))

17-3.5 Standards for Utilities. Public utilities maybe given a permit to trim street trees as may be necessary to comply with the safety regulations of the public utilities commission, provided that a person whose principal business is tree surgery, trimming or maintenance and who has obtained a City of Novato license to carry on such business, has been retained by the public utility to do the major tree trimming and the work is completed in compliance with the following standards.

a. Pruning Standards. Utilities shall comply with ISA Pruning Standards whenever practical. Work shall take into consideration the health and aesthetics of each tree while complying with federal, state and local fire prevention laws and requirements; minimum clearances prescribed by those agencies shall be adhered to where feasible. When trees are trimmed, all deadwood shall be cut out and refuse removed.

b. Emergency tree removal. The utility shall have the right to respond to and perform emergency removals and/or trimming of hazardous trees. The utility shall notify the director within one week of emergency tree removals and include the location and circumstances surrounding the removal. In all other cases involving the removal of a street tree or heritage tree, the utility shall apply for a permit for tree removal.

c. Permit Required for Maintenance. Any public utility maintaining any overhead wires or underground pipes or conduits shall obtain a permit from the director before performing any maintenance work on the wires, pipes, or conduits which would cause injury to street trees or require pruning of street trees. The public utility shall in no way injure, deface, prune, or scar any street tree until their plans and procedures have been approved by the director. The utility's permit application shall include the extent and locations of the maintenance work, procedures to be used and schedule.

(Ord. No. 1441 § 2(E))

17-3.6 Permits and Fees. It shall be unlawful and it is hereby prohibited for any person other than the community development director or his duly authorized agent or deputy to cut, trim, prune, spray, brace, plant, move, remove, or replace any street tree or shrub within the city, or to cause the same to be done, unless and until a written permit so to do shall have been first obtained from the director. Any person desiring to do any of the work described above shall fill out an application form which shall include a description of the work requested, location, types of trees and shrubs involved, detailed reasons for making the request and space to enter the recommendation of the director. Upon receipt of the application, the director shall, after obtaining any additional information deemed necessary and conducting an investigation thereof, approve or reject such application, and if approved, grant a permit subject to such requirements and conditions as the director may impose.

An encroachment permit shall also be required pursuant to section 15-2 for all work to be done in the public right-of-way.

(Ord. No. 1441 § 2(E))

17-3.7 Care, Planting, Removing and Replacement of Street Trees and Shrubs.

a. Care. The property owner shall provide adequate water necessary to maintain all street trees and shrubs and shall provide all root trimming necessary to maintain the public right-of-way. The property owner shall also maintain all trees and shrubs planted adjacent to the public right-of-way on such owner's property which may project over or under the public right-of-way, including the roots thereof.

No person shall permit any trees or shrubs over which the person has responsibility to maintain to restrict access or impede the use of public right-of-way, including use by the city street sweeper. Nor shall any person permit any trees over which the person has responsibility to maintain to have a clearance of less than eight feet over any public right-of-way or to have any part thereof which appears to be dead, liable to fall, dangerous or an obstruction to the public on any such right-of-way.

Whenever the director determines that a tree or shrub required to be maintained by the property owner is a public nuisance, the provisions of 17-3.10 through 17-3.13 shall apply.

Nothing in this section is intended to relieve any person of any obligation to plant or maintain trees or shrubs which may exist pursuant to written agreement with the city as a condition of development approval.

b. Planting. No person shall plant any tree or shrub within or adjacent to any public right-of-way, park or playground in the city until and unless such tree and its location shall have been first approved, and a permit granted therefor, in accordance with the provisions of this section. All street trees and shrubs being planted shall receive the care and processing stipulated in the street tree and shrub planting and pruning standards and specifications on file at the office of the department of community development. Only those trees and shrubs appearing on the "Approved Street Tree list" shall be planted in or adjacent to the public right-of-way.

c. Removal and Replacement. No person shall cut or in any manner injure any street tree or shrub now located or hereafter planted, within the public right-of-way, unless and until its removal has been first approved and a permit granted therefor, in accordance with the provisions of this section. The director may, in addition to such other conditions and requirements as he shall deem advisable, require the applicant to do the following:

1. Replant within six months from the date of issuance of such permit the number and kind of trees or shrubs at such location as the director shall designate.

2. Furnish to the city security as required by the director for the performance of the conditions or requirements which may be placed upon the issuance of such permit. When a permit is granted for removal of a tree or shrub, the entire stump shall be taken out for a depth of at least one foot below the ground surface. All timber and debris shall be removed from the right-of-way. The hole left by the stump shall be backfilled and thoroughly tamped and the site left in a presentable condition. The city engineer may remove or cause to be removed any street tree or shrub when he determines such tree or shrub to be a public nuisance because of its dangerous condition, including obstructing pedestrian and vehicular traffic. The provisions of 17-3.10 through 17.3.13 shall apply.

(Ord. No. 1441 § 2(E))

17-3.8 Obstructing Visibility. No person shall plant, or maintain any trees, shrubs, hedges or other growth, which may in the opinion of the city engineer constitute a dangerous obstruction to the view of the operator of any vehicle approaching an intersection. Under the provisions hereof, the city engineer may require that, within 50 feet of such intersections, tree branches less than eight feet from the ground must be removed and hedges or shrubs must be limited to three feet in height. Such 50 foot measurement shall be made from the intersection of the lines of the public right-of-way irrespective of actual street improvements. Any tree, shrub or hedge not kept trimmed as herein provided is hereby declared a public nuisance and the provisions of 17-3.10 through 17-3.13 shall apply.

(Ord. No. 1441 § 2(E))

17-3.9 Authority Over Private Trees or Shrubs. The public works director may inspect any and all trees, hedges, shrubs and plants which are standing on private property and overhang or project into any public right-of-way to determine whether any of the same, or any part thereof, appears to be dead, liable to fall, dangerous, or an obstruction to public travel on any such right-of-way. Whenever a tree; shrub, or planting is on private property, in whole or in part and is determined by the city engineer to be a public nuisance; or which endangers life, health, or safety of the public; or which has become infested with parasites, insect pests, or disease which may spread or scatter to street trees or shrubs, the director shall notify the property owner in the manner specified by this section that the nuisance shall be abated.

(Ord. No. 1441 § 2(E))

17-3.10 Expense of Nuisance Abatement. The abatement of a nuisance as defined in this section shall be at the expense of the responsible property owner.

(Ord. No. 1441 § 2(E))

17-3.11 Procedure for Nuisance Abatement.

a. Notice to Property Owner. Upon determining that a public nuisance exists, as provided in this section, the city engineer shall cause a written notice to be sent first class U.S. mail to the responsible property owner as listed on the current county assessor's roll. A copy of such notice shall be sent to the occupant of such property, if any. Said notice shall advise such property owner and occupant of the existence of the public nuisance, state the work necessary to remedy the condition and require the abatement thereof within a stated reasonable time or that same will be abated by the City of Novato and that the costs thereof shall be paid by such property owner upon billing therefor or shall become a lien against the property.

b. Appeal. Within ten days from the date of mailing the notice, any aggrieved person may appeal to the city council from the requirements of such notice. Such appeal shall be in writing and shall be filed with the city clerk. At the next regular meeting of the city council, it shall hear and determine said appeal and the decision of the city council shall be final. Notice of the city council's decision shall be given to the appellant in writing.

c. Removal or Correction by City. If the nuisance is not abated pursuant to the notice provided for in paragraph a of this subsection within the time prescribed in the notice, or within ten days of the giving of written notice of the decision of the city council on appeal, then the city engineer shall have the nuisance abated as provided in the notice unless otherwise directed in the decision of the city council on appeal.

(Ord. No. 1441 § 2(E))

17-3.12 Records to be Kept. The city engineer shall keep permanent records in which shall be entered the following information:

a. Identification of property upon which nuisance occurs;

b. Name and address of the property owner;

c. Date of mailing notice;

d. Date of hearing and decision on appeal, if any;

e. Description of work done in removing or correcting the nuisance;

f. Costs of abating the nuisance.

(Ord. No. 1441 § 2(E))

17-3.13 Procedure Making Expense a Lien on Property. After abating the nuisance, the city engineer shall deliver a copy of the records provided for above to the city clerk. The city clerk shall cause the property owner to be billed for the costs of removal or correction. Prior to August 1st of each year, the city clerk shall report to the county auditor the amount of such costs remaining unpaid, together with the assessor's parcel number of each property in question and the name of the property owner as shown on the current county assessor's roll. Thereafter the costs shall be a lien against the respective parcels charged therewith. The lien shall have the same character and effect and shall be collected in the same manner and at the same time as city taxes.

(Ord. No. 1441 § 2(E))

17-3.14 Injury to Trees and Shrubs. No person shall without a written permit from the city in the case of a street tree or shrub, do, or cause to be done by others any of the following acts:

a. Secure, fasten, or run any rope, wire, sign, unprotected electric installation or other device or material to, around or through a tree or shrub.

b. Break, injure, deface or destroy, or permit any fire to burn where it will injure, any tree or shrub.

c. Permit any toxic chemical, gas, salt brine, oil or any other injurious substance to be emptied on or about any tree or shrub, or emptied or spilled where it may drain or seep around any tree or shrub.

d. Excavate any ditch, tunnel or trench, or lay any drive within a radius of five feet of any tree or shrub.

e. Erect, alter, repair, or raze any building or structure without placing suitable guards around all nearby trees or shrubs that may be injured by such operations.

f. Knowingly permit any unprotected electric service wires to come in prolonged contact with any tree or shrub.

g. Remove any guard, stake, or other device or material intended for the protection of a tree or shrub, or obstruct any open space about the base of the tree or shrub designed to permit access of air, water, or fertilizer.

(Ord. No. 1441 § 2(E))

17-3.15 Interference. No person shall prevent, delay or interfere in the planting, pruning, spraying or removing of any street tree or shrub, or in the removal of stone, cement, or other substance about the trunk of any such tree or shrub, whether the work be performed by employees of the city or by an independent contractor, or his employees, engaged by the city to perform such work. Every person having any electrical conductor running along or through a public street, shall temporarily remove such conductor, or conductors, when it shall be necessary in order to take down or prune any tree located in, upon or along a public street, within 24 hours after the service upon the owner of such electrical conductor, or his or its agents, of a written notice from the city engineer to remove the conductor, or conductors, or the electricity therefrom.

(Ord. No. 1441 § 2(E))

17-3.16 Liability. Nothing in this entire section shall be deemed to impose any liability upon the city, its officers or employees, nor to relieve the property owner from the duty to keep trees, hedges and shrubs for which the owner is responsible, together with sidewalks and parkways, in front of such property in a safe condition.

(Ord. No. 1441 § 2(E))

17-3.17 Appeal. Any applicant under this section who may be dissatisfied with the action of the director or city engineer on his application may, within five days after notification of such action, file an appeal with the city council by written notice to the city clerk and within such period the council may, on its own motion, direct that the director's action be referred to it for review. The city council after considering the action of the director or city engineer and hearing the appeal or referral shall approve, modify, or overrule said action. The decision of the city council shall be final.

(Ord. No. 1441 § 2(E))

17-4.1 Violations and Penalties. Any person, firm, or corporation, whether its principal, agent, employee, or otherwise, violating any of the provisions of this chapter, shall be deemed guilty of an infraction and upon conviction shall be punished as specified in subsection 1-5.1.

(Ord. No. 1441 § 2(E))

17-4.2 Enforcement. The following designated employee positions may enforce the provisions of this chapter by the arrest or issuance of citations. Persons employed in such positions and authorized to exercise the authority provided in Penal Code Section 836.5 are authorized to issue citations with the approval of the community development director for any violations of this chapter. The designated employee positions are:

a. Community development director; or

b. The designee of the community development director.

It shall be the duty of the chief of police of the city to render any and all necessary assistance to the community development director for the enforcement of this chapter.

(Ord. No. 1441 § 2(E))