11.14 Approved Minutes

City and County of San Francisco

DEpartment of the ENvironment

URBAN FORESTRY COUNCIL
LANDMARK TREE COMMITTEE

 

REGULAR MEETING

 

APPROVED MINUTES

 

Thursday, November 14, 2006, 4:00 P.M.

 

City Hall, Room 421

One Dr. Carlton B. Goodlett Place

San Francisco, CA 

 

 

COMMITTEE MEMBERS:  Mike Boss (Chair), Carolyn Blair, Steve Griswold, David Habert, and Mark Sustarich

                                                                  

Urban Forestry Council Associate:  Grace Ma

 

Council Secretary:  Monica Fish

 

ORDER OF BUSINESS 

1.      CALL TO ORDER AND ROLL CALL.  The meeting was called to order at 4:03 p.m.  Present:  Chair Boss, Members Blair (4:10 p.m.), Griswold, Habert (4:10 p.m.), and Sustarich.  Deputy City Attorney Alicia Cabrera was present.

 

2.      ACTION: Adoption of Minutes of the October 10, 2006 Urban Forestry Council Landmark Tree Committee Regular Meeting. Upon motion by Member Sustarich and second by Chair Boss, the October 10, 2006 Meeting Minutes were approved with no objection. (Absent:  Members Blair and Habert) (Explanatory Document: Approved Minutes of the October 10, 2006 Regular Meeting.)

 

3.      DISCUSSION and ACTION: Hearing on Nominations for Landmark Tree Status. The Landmark Tree Committee held a hearing to determine whether the tree nominated at the following address meets the criteria for designation as landmark trees:

 

·         Coastal Redwood (Sequoia sempervirens), 455 Chenery Street

 

At the conclusion of the hearing, the Landmark Tree Committee voted on whether to approve or reject the nomination.  Written findings will be adopted to support its decision to forward to the Urban Forestry Council.  The Council will forward approved nominations to the Board of Supervisors for further consideration. (Explanatory Documents: Landmark Tree Nomination Form, pictures, 455 Chenery Nomination, Opposition to Landmarking, Evaluation Forms, Chair Boss Evaluation; Planning Commission Action 461 Chenery and Assessors Maps)

PRESENTER: Grace Ma, Urban Forestry Council Associate

 

Chair Boss stated that the purpose of this agenda item is for the Committee to determine whether the subject tree qualifies for landmark status and to send its decision to the Urban Forestry Council.  It was advised that the Urban Forestry Council serves as Advisory Council to the Board of Supervisors, and the decision ultimately lies with the Board of Supervisors.  The Urban Forestry Council will decide at their next meeting on December 8 whether to forward its recommendation to the Board of Supervisors. 

 

Property Owner’s Presentation

 

Ms. Maya Dhillon, the nominator and property owner, stated that she had submitted a request for a discretionary review hearing on the proposed construction at 461 Chenery Street that was rejected by the Planning Department’s Zoning Administrator. Ms. Dhillon expressed her concern that the nomination forms, Ms. Ma’s evaluation form, and other relevant documents that contained personal information were shared with the opposing party of the nomination.  Ms. Dhillon stated that she had presented this issue to District Attorney Kamala Harris. 

 

Ms. Dhillon discussed her opposition to the proposed construction initiated by Mr. Gillies, the property owner at 461 Chenery Street, which is adjacent to Ms. Dhillon’s property and contains portions of the subject tree.  It was stated that an Arborist Report prepared by Mr. Ted Kipping of Tree Shapers, LLC indicates that the proposed construction would cause damage to the subject tree.

 

Ms. Dhillon questioned the credibility of an environmental exemption issued by the Department of Building Inspection and stated there was an absence of analyses that were necessary for the issuance of building permits for the proposed project.  (Explanatory Statement attached.)  The Landmarks Tree Committee was asked to support the landmarking of the subject tree.      

 

Staff Analyses

 

Council Associate Ma advised that she and five Committee members had examined and prepared evaluation forms on the subject tree.  Ms. Ma described findings contained in her evaluation form and distributed photos taken at the site (Explanatory Document:  Evaluation Forms attached above and Photos). 

 

Opposing Side Presentation

 

Explanatory Document attached:  Opposition to Landmark Tree Nomination at 455 Chenery Street, Documents Received in Committee Meeting:  Presentation; Project Design; Discretionary Review).

 

Mr. Daniel Frattin, Reuben & Junius, LLP spoke on behalf of Mr. Doug Gillies, owner of 461 Chenery Street that is adjacent to the proposed landmark tree nomination at 455 Chenery Street.  Mr. Frattin stated that Mr. Gillies had filed building permits to add on to his home at 461 Chenery Street, and that Ms. Dhillon objected based on concerns for the subject tree.  It was stated that Ms. Dhillon presented her concerns at a Planning Commission hearing, and that the Planning Commission did not choose to elect the tree for landmark status.  The Planning Commission approved construction at Mr. Gillies property subject to the condition that he retain an arborist to determine what steps were necessary to protect the tree or replace the tree if its loss were unavoidable.  This condition was complied with and Mr. John Bryan, Arborist was present to answer questions.

 

Mr. Frattin opposed the landmark nomination on the grounds that all property owners must support the nomination of a tree, and portions of the subject tree were on Mr. Gillies’ property.   Additional arguments opposing the nomination were presented as explained in the Explanatory Document above. It was requested that the Committee oppose the request to landmark the subject tree.  

 

Committee Questions

 

Member Sustarich asked Ms. Dhillon if she had information as to when the tree was planted.  Ms. Dhillon stated that a previous arborist had estimated that the tree was over 100 years ago.

 

Member Blair stated that Ms. Dhillon had the right to nominate the tree because the majority of the tree is in her backyard (the trunk) and referenced a book entitled “Neighbor Law.” 

 

Deputy City Attorney Cabrera advised that it was the Landmark Tree Committee’s decision/interpretation whether the nomination was properly before the Committee and as to whether the tree should be jointly nominated because portions are in Mr. Gillies’ property.

 

Chair Boss stated that because of lack of a legal precedent, this legal issue could not be settled at the Committee meeting at this time.

 

Mr. Gillies stated that the Planning Commission approved the project and that Mr. Bryant, Arborist, has been retained to consult with his architect/structural engineers to minimize the damage to the tree and still build the project. 

 

Chair Boss asked what type of adaptations the design drawings contain to accommodate the preservation of the tree.  Mr. Gillies stated that those were not available this early in the process.  Member Boss stated that the issue before the Landmark Tree Committee was whether this tree is worthy of landmark status, and not whether the construction would effect the tree or not.

 

Deputy City Attorney Cabrera stated that the Committee did have to address the issue whether the nomination was properly before the Committee.

 

Public Comment

 

Mr. John Bryan, Certified and Registered Consulting Arborist stated that in his opinion the tree does not merit landmark status.  Reasons given were the lack of growth, poor visual characteristics, accumulation of debris and dead wood, ivy/upper parts causing a home for insects, etc., poorly maintained, blocks light, and that it was not a rare tree.

 

Staff Rebuttal

 

Staff did not present comments at this time.

 

Property Owner Rebuttal

 

Ms. Dhillon indicated that the subject tree is a healthy redwood, and that the proposed construction would cause the destruction of the subject tree.  It was stated that this situation is a matter of life and death for both her and the subject tree.  Ms. Dhillon advised that the Zoning Administrator said that she should pay for half of the price of removal of the tree and that removing the tree from the property would be an additional expense, which she opposes. Ms. Dhillon again opposed the sharing of relevant documentation with the opposing party.  An arborist statement was distributed in Committee meeting (Explanatory Document:  Arborist Statement).

 

Deputy City Attorney Cabrera advised that all documents submitted to the Urban Forestry Council including evaluation forms are public records.  Ms. Fish indicated that all documentation is posted on the Department’s website and is sent to the San Francisco Public Library as part of Sunshine Ordinance requirements.

 

Ms. Dhillon stated that was against the law to share her ethnicity and religion with the public.  Deputy City Attorney Cabrera advised that if that information is voluntarily placed on a public record, it is open to the public.  Ms. Ma advised that she had not asked for Ms. Dhillon’s ethnicity and religion, and Ms. Dhillon had voluntarily written the information on the nomination form.

 

Affected Property Owner Rebuttal

 

Mr. Frattin stated that the Committee is not legally empowered to decide on this landmark tree nomination and that it is a policy decision and should be deferred.  The policy decision would be that the Committee would be taking applications from one property owner for a tree that spreads over several properties.  Mr. Frattin indicated that the landmark tree nomination is a result of one property owner/neighbor opposing the construction of another property owner/neighbor.  It was stated that if this is a worthy tree, that a Board of Supervisors member, a Landmarks Preservation Advisory Board member or another Department head would move the nomination forward.  The Committee was urged to reject the landmark nomination of the subject tree.

 

Committee Members’ Discussion

 

Member Blair urged the Landmark Tree Committee to landmark the tree because it is a rare tree, one of grandeur, and is one of the few redwoods left in the City.  Other reasons given included that (1) there is less than 1% of 668,000 trees left in the City; (2) the tree has legally been nominated by a property owner; (3) the Planning Department can grant a 25 to 45% setback so that the adjacent property owner can enjoy economic profit from his development and still include this existing tree, which would increase his property value. 

 

Member Sustarich stated that (1) the tree was planted in the wrong location next to the property line; (2) the property trunks would cause problems in the future; (3) was not properly maintained as a landmark tree; and (4) not appropriate for a backyard.  

 

Chair Boss recommended that the tree not be landmarked.  Reasons given include:  (1) the tree is limited in its value to Ms. Dhillon’s visual inspection as it is not open to public view; (2) a redwood tree cannot be characterized as a rare tree in a coastal California climate; (3) it is not a common tree in San Francisco, but there are many redwood trees throughout the City and in backyards; (4) no notable ecological function; and (5) not spectacular in its height, size or form, or part of a significant community.

 

Member Blair asked how many redwood trees there are in a backyard in residential areas.  Chair Boss stated that it is not a common tree in residences, but it is not a rare tree.

 

Deputy City Attorney Cabrera stated that if the Urban Forestry Council decides not to nominate the tree, it is not forwarded to the Board of Supervisors.  If a decision is made to nominate the tree for landmark status, then it will go to the Board of Supervisors. The Landmark Tree Committee will make a recommendation to the Urban Forestry Council.  Chair Boss stated that the Committee’s vote would be presented to the full Council 

 

VOTE: (3-2 Not to Landmark)

Upon Motion by Member Blair and second by Member Habert, to approve landmarking the tree at 455 Chenery Street.  The motion failed by the following vote:  (AYES:  Members Blair and Habert); (NOES:  Members Boss, Griswold, and Sustarich).  Chair Boss announced that the Landmark Tree Committee recommended against landmark status by a vote of 3-2.

 

Member Griswold asked if all nominations that come to the Landmark Tree Committee are presented to the full Council with opponents and proponents presenting their case.  Deputy City Attorney Cabrera stated that the Urban Forestry Council will hear public comment, but there would not be an additional hearing.

 

Public Comment:  Mr. Gillies asked for clarification on the landmark tree ordinance in reference to state law and landmark tree ordinance.  Deputy City Attorney Cabrera referenced Ordinance Section 810(b)(1)(i), Nominations, that states that the property owner whose property contains the subject tree by a written request to the Urban Forestry Council is the person that can nominate.  The argument is that the word “contains” is subject to interpretation whether or not if a tree extends into the adjacent property whether the adjacent property owner has the right to be joined into the property nomination.  The question is whether just the owner that has the tree trunk on their main property is the only nomination you need to be valid to present before the Committee and the Council.  On the state side, there was an opposition submitted dated November 9th, and on page 4, Section 3, “Encroaching Branches and Roots Belong to Mr. Gillies under State Law.”  In that paragraph, there is case law by Mr. Daniel Frattin that says because the branches are on his client’s property, that under California case law, he is allowed to trim the branches that encroach onto his property.  Chair Boss stated that the adjacent property owner has the right to trim those, but has to do so in a way that would not disfigure the tree.     

 

4.  DISCUSSION and ACTION:  Nomination, Hearing, and Paperwork Instructions.  The Landmark Tree Committee voted to approve written instructions to advise the public about the nomination, hearing, and paperwork requirements.  (Explanatory Documents: Property Owner Notification Letter Draft, Release to Evaluate Trees; and Draft Letters of Support  Landmark Tree Support Letter, Rejection Letter, and No Position Letter.)

 

Council Associate Ma described the two generic templates that were created in order to (1) notify a property owner of landmark tree nomination and process and (2) the property owner release for Committee members to enter their property to examine the tree.  Deputy City Attorney Cabrera recommended a written release opposed to a verbal release and that only one property release form/signature was needed.  Chair Boss recommended that Council Associate Ma bring the form with her after receiving a verbal release for the property owner’s signature.  Deputy City Attorney Cabrera recommended including the release form in the nomination packet.  It was advised that if the property owner does not agree to a release to enter their property, there is no right to go onto their property, and members may be limited to viewing the tree from the street.

 

Council Associate Ma described the property owner notification form letters that were created to notify the property owner of the Urban Forestry Council’s support of a landmark tree nomination, rejection, or no action.  Ms. Fish recommended that the form letters contain a reference that the Resolution adopted by the Council would be attached. Deputy City Attorney Cabrera recommended that the full Council adopt the subject forms after the Committee’s recommendation.

 

Upon Motion by Member Blair and second by Member Griswold, written instructions to advise the public about the nomination, hearing, and paperwork requirements were approved with no objection to forward to the full Council for their adoption at the December 8 meeting. 

 

5.  DISCUSSION and ACTION:  City Agency Instructions.  The Landmark Tree Committee will create a recommended process to submit to City agencies/department heads/officials on the Landmark Hearing process and submission requirements (Explanatory Document:.)  

 

Council Associate Ma advised that she has created an internal Landmark Tree Notification Procedure and requested that the Committee review and be aware of the process.  Member Griswold inquired as to how temporary landmark protection status can be reached after submitting an official nomination to the Urban Forestry Council.  Council Associate Ma explained that if a Board of Supervisors member nominates a tree, it receives immediate temporary landmark status.  If a property owner nominates a tree, the second statement of the procedure would apply which states, “This tree has only been nominated at this time.  A later notice will indicate if it is eligible for landmark protections.”  The statement “This tree has received designated landmark status and should be protected” would apply if the Council and the Board of Supervisors were to approve landmark status.  Members Boss and Griswold recommended that the procedures should be changed to include position titles instead of proper names.  Review and approval of the internal process would be discussed at the next Committee meeting in December.

 

Council Secretary Fish stated that the Committee at their October meeting requested that City Agency instructions be created that explains the Committee’s expectations in regards to timelines and paperwork requirements.  Council Associate Ma stated that additional instructions would not be required because the Nomination Forms already have adequate instructions.  Member Griswold complimented an article written by Council Member Cohen on protecting significant trees in San Francisco, and the Committee discussed including the article in the Nomination Packet.  Council Associate Ma stated that she could create a cover letter addressed to City agency department heads with copies of the nomination forms and meeting schedule/nomination and documentation due dates. 

 

Deputy City Attorney Cabrera stated that this agenda item indicates that the Committee would be creating City agency instructions.  The Committee agreed that the Nomination Forms contain all relevant instructions and additional instructions would not be necessary at this time.  Upon Motion by Member Griswold and second by Chair Boss with no objection, this item was removed from the agenda.

 

6.  DISCUSSION and ACTION:  The Landmark Tree Committee discussed and voted to adopt the Meeting/Documentation Due Dates Schedule. (Explanatory Document:  Schedule)

 SPONSOR:  Committee Member Mike Boss

SPEAKER:  Monica Fish, Urban Forestry Council Secretary

 

Council Secretary Fish stated that the Meeting/Documentation Due Dates Schedule was created based on discussions held at the October Committee meeting.   Upon Motion by Member Griswold and second by Member Sustarich, the Meeting/ Documentation Due Dates Schedule was approved with no objection.

 

7.  DISCUSSION:  The Landmark Tree Committee discussed creation of an outreach brochure advocating landmarking of trees.

 

Council Secretary Fish advised that the Urban Forestry Council requested that creation of an outreach brochure be heard at a Landmark Tree Committee meeting.  Member Blair stated that this item was at the request of Council Member Ora Sherk.  Member Griswold stated that Council Member Cohen’s article was a good introduction to the public.  Chair Boss asked if there was a budget available to produce and distribute a brochure.  Council Associate Ma advised that there is no funding available for Fiscal-Year 2006-07. 

 

Member Habert recommended that an outreach strategy be discussed, and that a brochure may not be the answer.  Member Blair advised that the purpose would be for education and outreach and recommended using the Department’s website as an outreach tool.  Council Associate Ma advised that Council Member Miller suggested that other organizations such as PG&E and PUC be consulted for this effort.  Member Griswold recommended developing a program that would search out, recruit, and celebrate landmark trees.  Member Blair recommended that each Supervisor nominate a tree from their district and Department heads nominate a tree that is in their jurisdiction.

 

Public Comment:  Urban Forestry Council Chair Milne advised that the Department of the Environment’s Director has pending before him five or six trees that could be considered for landmark status.   It was advised that the Funding Committee discussed outreach and publicity for this program at their September meeting.  Council Associate Ma was asked to provide a list of pending trees to Committee members.

 

8.  DISCUSSION: New Business

 

Chair Boss stated that the Committee, Council, or Board of Supervisors address trees spanning property lines and how it affects the nomination of a property owner.  Chair Boss requested that this issue be placed on the next Committee meeting agenda.

 

Member Blair recommended that the Deputy City Attorney review this issue.  Deputy City Attorney Cabrera stated that she has reviewed this issue and it is subject to the Council and Committee’s interpretation.  It was advised that if the Urban Forestry Council feels that the Ordinance is unclear, the proper route would be to request that the Board of Supervisors make an amendment to further clarify.  It was recommended that the entire Ordinance be examined for future amendments.  Member Habert stated that the Committee should not be a forum for disputes between property owners.  It was suggested that there be better coordination between the Planning Department and the Landmark Tree Committee process. Member Habert recommended proper notification processes between property owners when trees span two property lines.

 

Chair Boss asked about the status of the tree at 4124-23rd Street.  Council Associate Ma stated that a Resolution of Intent to Nominate has been introduced at this time and discussed current work that is being done on the property. 

 

9.  FUTURE AGENDA ITEMS

 

Deputy City Attorney Cabrera stated that she would discuss the landmarking tree process and Board of Supervisors Rule 5.31 as requested by Member Blair at a future Council Meeting.

 

10.  PUBLIC COMMENT:  Members of the public may address the Committee on matters that are within the Committee’s jurisdiction and are not on today’s agenda.  There was no public comment at this time.

 

11.  ADJOURNMENT.  The Landmark Tree Committee meeting adjourned at 6:40 p.m.

Respectfully submitted by,

 

Monica Fish, Council Secretary

 

Adopted: December 12, 2006

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