Sec. 9-2.349. Tree removal permit.
(a) Purpose and intent. The purpose and intent of this section is to establish procedures necessary to achieve all of the following objectives:
(1) That the City continue to realize the benefits provided by its urban forest, including shade and microclimate control, soil stabilization and protection, watershed protection, maintenance of healthy air quality, preservation of scenic views, aesthetics and community character, maintenance of habitat for birds and other wildlife, and protection and enhancement of property values among other such benefits;
(2) That suitable trees are maintained throughout the City, in a healthy and nonhazardous condition;
(3) That heritage trees are identified and preserved;
(4) That the use of native, drought resistant and California-friendly trees on public land private property is encouraged;
(5) That a functional and manageable process for permitting tree removal is provided for properties where such removal is necessary or will not adversely impact adjacent properties or community character; and
(6) That new tree planting is required or encouraged where appropriate on public and private property, in order to create and maintain a healthy urban forest of native and California-friendly trees, consistent with the natural environment and rural character of San Juan Capistrano.
(b) Exemptions. The requirement for a tree removal permit does not apply to the following circumstances:
(1) Threat to public health, safety, or property. In the event of a situation wherein a tree is causing a threat to human life, safety, or property, the Planning Director or designee may authorize the removal of such tree without issuance of a tree removal permit provided a written opinion is provided by a qualified tree expert that the subject tree is a threat to public health, safety, or property. In cases of immediate hazard, such removal may be authorized by other agents of the City, including directors of the City departments of Planning, Engineering and Building, or Public Works. In cases where the Orange County Fire Authority has determined that a tree is dead and is a threat or hazard, the Planning Director or designee may authorize the removal of such tree without issuance of a tree removal permit. This exemption also includes tree removal by a utility company within a utility easement in cases where a qualified tree expert has determined, in writing, that such tree(s) are a hazard to utility lines or facilities. For purposes of this section, a qualified tree expert shall mean a California-registered professional forester or an arborist certified by the Western Chapter of the International Society of Arboriculture (ISA), the California Arborist Association (CAA), or other nationally recognized tree research, car and preservation organization approved by the Director.
(2) Orchards. Removal of trees which are growing on property in use as a nursery, garden center, tree farm, or orchard, where such trees, or their produce, are being grown for the purposes of sale, does not require issuance of a tree removal permit.
(3) Dead, diseased, structurally unsound, or unstable trees. In the event that a tree is determined by a qualified tree expert to be unviable because it is dead or dying, diseased, infested, structurally unsound, unstable, overcrowded, or exhibits other characteristics which, in the opinion of the qualified tree expert cause a need for tree removal, the Planning Director or designee may authorize the removal of such tree without issuance of a tree removal permit.
(4) Single-family residential lot. Except for heritage trees and trees located within front yard setbacks or any setback adjacent to a public right-of-way or public trail easement, trees that are located within the yard areas of a single-family residential lot may be removed without issuance of a tree removal permit.
(5) Trees with trunk diameter less than six (6) inches measured three (3) feet above grade.
(6) Trees that are invasive and/or inappropriate for the area as determined by the Planning Director provided such trees are replaced with native trees.
(c) Applicability. A tree removal permit shall be required as follows:
(1) New development projects. Tree removals associated with a development project that is subject to other discretionary land use approvals, such as an architectural control or subdivision, may be permitted in conjunction with the other discretionary approvals by the reviewing authority for those approvals, subject to the reviewing authority making the required findings in subsection (e) and adding conditions of approval for replacement trees and landscaping in accordance with the intent of this section and as deemed appropriate by the reviewing authority.
(2) Utility easements. Tree removal proposed by utility companies for trees within utility easements shall require issuance of a tree removal permit, except in cases where a qualified tree expert has determined, in writing, that such tree(s) are a hazard to utility lines or facilities. Nothing in this section shall be construed to prevent utility companies from trimming trees, or otherwise maintaining the landscape within an easement for the purpose of preventing damage to utility lines or facilities.
(3) Common landscaped areas. With the exception of non-heritage trees that are located more than fifty (50) feet from any adjoining public right-of-way, public trail or private street, tree removal within common landscaped areas of residential projects for the purpose of landscape maintenance, such as by a homeowner’s association or other entity having responsibility for property maintenance, shall require issuance of a tree removal permit.
(4) Nonresidential projects. Tree removal on nonresidential projects for the purpose of landscape maintenance, including commercial centers and business parks, shall require issuance of a tree removal permit.
(5) City facilities and right-of-way. Tree removal by the City in the public right-of-way, parkways, parks, or other City facilities shall conform to the applicable provisions of this section regarding replanting requirements, acceptable species, and review by a qualified tree expert where required by the Planning Director to determine the viability of trees proposed for removal. Any proposal by the City to remove a heritage tree shall require Planning Commission approval pursuant to subsection (f) of this section.
(6) Individual residential lots. Tree removal on individual residential lots for any tree within the front or street side yard setback, or any required setback adjacent to a public or private right-of-way or trail easement, shall require issuance of a tree removal permit.
(7) Removal of any heritage tree, or any construction, grading, trenching, or other disturbance within the critical root zone of a heritage tree, shall require a tree removal permit in addition to compliance with the requirements of subsection (f) of this section.
(d) Tree removal permit procedures.
(1) Application filing.
(A) An application for tree removal shall be filed with the Department of Planning Services, along with the required fee as established by resolution of the City Council. The Planning Director shall prescribe the form of application and the supporting information required to initiate the tree removal application review. Once an application is received by the Department of Planning Services, the application will be reviewed for completeness. If the application is found to be incomplete, the Department of Planning Services will notify the applicant in writing within thirty (30) days what additional information is required, and the application will not be processed until that information is received by the Department of Planning Services. A report prepared by a qualified tree expert may be required to complete submittal of the application; such report shall include a description of the size, type, health, and condition of the tree(s) proposed for removal, along with any recommendations for enhancing or maintaining trees on the site.
(B) Site inspection may be conducted by the Planning Department to determine existing conditions of trees, structures utilities, other landscaping, and other relevant site conditions affecting the trees proposed for removal and any proposed replacement trees.
(2) The Planning Director may require notice of intended tree removal to Homeowner’s Associations and affected property owners located adjacent to the subject property, pursuant to Section 9-2.302(h).
(3) The Planning Director may refer any tree removal permit application to the Design Review Committee for review of the proposed tree removal, proposed replacement tree(s), and associated landscaping.
(4) Except for heritage tree removal permits, the Planning Director or designee may approve a tree removal permit administratively, and may add conditions of approval to ensure conformance with applicable provisions of this Code. Alternatively, the Planning Director may refer a tree removal permit to the Planning Commission based on a determination that the proposed tree removal may affect other property owners or the general public due to the size, number, type, or location of trees proposed to be removed. The Planning Commission shall review any request to remove a heritage tree.
(5) Time period for approval. After approval, a tree removal permit shall be valid for six (6) months from the date of approval, except as otherwise specified by the reviewing authority in the tree removal permit. Within this time period, all conditions shall be completed, tree(s) removed, and replacement tree(s) planted.
(6) The City may conduct a reinspection or may request written or photographic verification that conditions of approval for the tree removal permit have been complied with, and that any required tree replanting has occurred.
(e) Findings for approval of a tree removal permit. The reviewing authority may approve the removal of trees as part of a discretionary project review or tree removal permit application, based on an affirmative finding that one or more of the following criteria are met as substantiated by evidence in the record.
(1) The tree proposed for removal is unsuitable to the planting area in that the area is too small to accommodate the height, diameter of trunk or canopy, or root zone of the tree, or excessive trees exist on the site requiring thinning to maintain tree health;
(2) The tree is an unsuitable variety for the site in that the species is not a native variety, is not in keeping with the community character of San Juan Capistrano, is of an invasive species, or otherwise conflicts with the intent of this section;
(3) Removal of the tree will not have an adverse impact on adjacent properties or the general welfare in that its removal will not adversely impact views, public streetscapes, or other aesthetic considerations;
(4) Where appropriate, replacement trees have been proposed to maintain the urban forest canopy and the replacement trees are more appropriate to the site and to the planting area.
(f) Heritage tree provisions.
(1) For the purposes of this section, a tree shall be deemed a heritage tree and shall be protected from removal when such tree has a trunk diameter at breast height (dbh) of thirty-six (36) inches or greater, and is a specimen of the following species: Schinus molle (California pepper); Quercus spp. (oak); Cedar spp. (cedar); Eucalyptus globulus (blue gum eucalyptus); Juglans spp. (walnut); Olea europaea (olive); Platanus spp. (sycamore); Populus spp. (cottonwood); or as otherwise designated by the Planning Commission based on the tree’s unique and intrinsic value to the community because of its size, age, historic association or ecological value.
(2) Unless determined to be exempt from a tree removal permit by the Director pursuant to subsection (b), heritage trees shall not be removed without Planning Commission review and approval of a heritage tree removal permit, based on an affirmative finding that one or more of the following criteria are met as substantiated by evidence in the record:
(A) The heritage tree proposed for removal is unsuitable for the planting area in that the area is too small to accommodate the height, diameter of trunk or canopy, or root zone of the heritage tree, or excessive trees exist on the site requiring thinning to maintain tree health;
(B) The tree has been determined by a qualified tree expert to be unviable because it is dead or dying, diseased, infested, structurally unsound, unstable, overcrowded, or exhibits other characteristics which, in the opinion of the qualified tree expert, cause a need for tree removal.
(3) In approving a heritage tree removal permit, the Planning Commission may add conditions of approval to ensure conformance with applicable provisions of this Code.
(4) Any proposal for construction, utility installation, paving, street improvements, or any other ground-disturbing activity within the drip line or critical root zone of a heritage tree shall require administrative approval by the Planning Director pursuant to Section 9-2.303(a)(4) prior to issuance of permits, to ensure that such work will not adversely impact the health of the heritage tree. The Planning Director may require a report prepared by a qualified tree expert to document that such work will not adversely impact the tree. The Planning Director may forward the application to the Planning Commission for review.
(g) Appeals. Any decision regarding a tree removal permit may be appealed in accordance with the provisions of Section 9-2.311, Appeals.
(h) Recommended tree selection guide. The use of California native/friendly and drought tolerant trees shall be encouraged within the City. The Planning Department shall maintain information on recommended trees for dissemination to and use by the public in implementing this section.
(i) Violations and penalties.
(1) Any person, property owner, firm or corporation, including a contractor of the property owner, who violates any provision of this section, shall be guilty of a misdemeanor. The City Attorney shall have the authority to prosecute any violation of this section as an infraction, in the interests of justice. Each unauthorized removal of a tree shall constitute a separate offense and shall be subject to the following penalties.
(A) Any person convicted of a misdemeanor shall be punished by a fine of not more than one thousand dollars ($1,000.00), or by imprisonment in the County Jail for a period not exceeding six (6) months, or by both such fine and imprisonment.
(B) Any person convicted of an infraction shall be punished by:
(i) A fine of one hundred dollars ($100.00) for a first violation;
(ii) A fine of two hundred dollars ($200.00) for a second violation of the same provision within one year from the date of the action constituting the previous violation; and
(iii) A fine of five hundred dollars ($500.00) for each additional violation of the same provision within one year from the date of the action constituting the previous violation.
(2) In addition to the criminal remedies provided in subsection (i)(1) of this section, the following remedies may be imposed:
(A) Upon conviction of a violation of this section, all land use applications, building permits, occupancy, and/or development permits for the subject property upon which a violation of this section took place may be suspended until a tree replacement and/or repair program, specified by the Planning Director, is completed to the Director’s satisfaction. The Director may require the violator to retain and pay the costs of a qualified tree expert to develop and implement this program.
(B) The City Attorney may file a civil action for damage or destruction to any tree, for tree removal prior to approval of a development project or a tree removal permit, and for those trees removed in violation of approved plans. A dollar value for tree damage or loss shall be assessed by using a Basic Value Method or Replacement Cost Method as devised by the Council of Tree and Landscape Appraisers (CTLA).
(C) Any property owner, firm or corporation, including a contractor of the property owner, who violates any provision of this section, shall be liable for a civil penalty not to exceed one thousand dollars ($1,000.00) for each violation in accordance with Government Code Section 36901. The City Attorney may file a civil action seeking such civil penalties. The civil penalty prescribed herein may be sought in addition to injunctive relief, specific performance or any other remedy; provided, however, that a civil penalty shall not be sought for any violation for which a criminal prosecution has been commenced.
(D) A violation of this section shall also be deemed a public nuisance and may be enjoined or abated by the City by means of a civil action or administrative abatement.
(3) Notwithstanding anything to the contrary contained in this section, the negligent clearing of trees shall be punishable as an infraction. For purposes of this section, negligent clearing shall mean any act or omission, including excessive cutting or topping of the tree canopy, and the inadvertent cutting or removal of all or a substantial part of a tree or other vegetation within the critical root zone, that negligently causes the tree to decline in health and/or die, a lack of water or proper care, and other acts of negligence that result in the decline in health or death of a tree.
(4) Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of or failure to comply with any provision of this section is committed, continued, or permitted by such person, and shall be punishable accordingly.
(5) In any civil, criminal or administrative action or proceeding commenced by the City to abate a nuisance, to enjoin a violation of any provision of this section, or to collect a civil penalty imposed by this section, the City shall, if it is the prevailing party, be entitled to recover from the defendant in any such action reasonable attorneys’ fees and costs of suit.
(6) Nothing in this section shall prevent the City from taking other such lawful action as is necessary to prevent or remedy any violation(s). (Ord. No. 938, § 2, 2008; Ord. No. 1076, § 5, 2020)