REAL ESTATE LAW UPDATE
October, 2002

WATCH OUT FOR THE TREE (AND SHRUB) POLICE

By Nathan B. Hannah

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This month's sampling of government regulation gone too far is from the city of Santa Cruz, California. Since none of my readers are in Santa Cruz (at least as far as I know), this item has no immediate application for any of you, but it is reflective of a trend toward both greater regulation of property and heightened enforcement of such regulations. On a broader level it serves as another great example of how, in striving for a perfect world, we are choking ourselves with rules.

Santa Cruz has a law called the "Heritage Tree" Ordinance. The law provides penalties for any person who "alters, damages, or destroys" any "heritage tree" or "heritage shrub." The law also requires anyone who plans to "prune, trim, cut off, or perform any work, on a single occasion or cumulatively, over a three year period, affecting twenty-five percent or more of the crown of any heritage tree or heritage shrub" to first obtain a permit from the city government.

Wait, it gets better. The person seeking the permit can't just say, "I want to prune the ‘heritage tree/shrub' on my property." The person must "submit a permit application, together with the appropriate fee." The permit application "shall include the number, species, size, and location of each heritage tree or heritage shrub, and clearly describe the scope of the work being proposed and the reason for the requested action."

At this point you are no doubt asking, what, exactly, is a "heritage tree/shrub?" Here are the definitions from the Santa Cruz Municipal Code, adopted in 1994:

Any tree, grove of trees, shrub or group of shrubs, growing on public or pri vate property within the city limits of the city of Santa Cruz which meet(s) the following criteria shall have the "heritage" designation:

(a) Any tree which has a trunk with a circumference of forty-four inches (approximately fourteen inches in diameter or more), measured at fifty-four inches above existing grade;
(b) Any tree, grove of trees, shrub or group of shrubs which have historical significance, including but not limited to those which were/are:

(1) Planted as a commemorative;
(2) Planted during a particularly significant historical era; or
(3) Marking the spot of an historical event.

(c) Any tree, grove of trees, shrub or group of shrubs which have horticultural significance, including but not limited to those which are:

(1) Unusually beautiful or distinctive;
(2) Old (determined by comparing the age of the tree or shrub in question with other trees or shrubs of its species within the city);
(3) Distinctive specimen in size or structure for its species (determined by comparing the tree or shrub to average trees and shrubs of its species within the city);
(4) A rare or unusual species for the Santa Cruz area (to be determined by the number of similar trees of the same species within the city);
(5) Providing a valuable habitat; or
(6) Identified by the city council as having significant arboricultural value to the citizens of the city.

Now you are probably thinking, ok, so the property owner who wants to do pruning that would affect 25% or more of their "heritage tree/shrub" has to submit a permit application describing what they plan to do, then they get the permit. You think the city is going to let the property owner off that easy? No, next the city sends out an inspector who "shall inspect the tree or shrub which is the subject of the application." If "upon said inspection, it is determined that the tree or shrub... meets none of the criteria set forth in" the section defining "heritage tree" and "heritage shrub," then "no further action on the part of the director or the permit applicant is necessary." So if the inspector agrees that the tree or shrub doesn't fit any of the criteria for a "heritage tree" or "heritage shrub," the property owner can proceed to prune it without additional red tape.

But what if the inspector decides, for example, that the tree/shrub in question is "unusually distinctive" (just to choose one of the criteria at random) and therefore qualifies as a "heritage tree/shrub?" The city parks and recreation director or his/her designee then must "make findings of fact upon which he/she shall grant the permit, conditionally grant the permit specifying mitigation requirements, deny the permit or allow a portion of the of the proposed work outlined in the permit application to be done." That is, if the property owner is planning to prune only one or two "heritage trees/shrubs." If the plan is to prune three or more "heritage trees/shrubs," the director or his/her designee "shall require that the applicant sign an agreement for preparation and submission of a consulting arborist report. As part of said agreement, the applicant shall be required to deposit with the department an amount of money equal to the estimated cost of preparing the report." In other words, the property owner has to pay for a tree expert's report that the city will then use in determining whether the property owner should be permitted to prune his "heritage trees/shrubs." I swear I'm not making any of this up.

Of course, if the director denies the permit application, the property owner has a right of appeal. The Municipal Code spells out in fine detail the procedure for appealing the director's decision to the city's parks and recreation commission. The commission's decision may in turn be appealed to the city council, the decision of which is final. A denial by the city council means that the property owner may not reapply for a period of one year "unless there is a significant decline in the health of the subject heritage tree or heritage shrub as certified by a licensed arborist; and said decline in health has not been caused by the applicant or any person associated with the applicant." Translation: no fair not watering the "heritage shrub," then applying for a permit to remove it because it's dead.

What if, you may ask, the property owner simply ignores all this red tape and starts pruning without obtaining a permit? You think the people who adopted this law didn't think of that? Consider the experience of one Santa Cruz homeowner who, according to a story in the September 17, 2002, Los Angeles Times, hired a tree trimmer (who, under the city ordinance, must have a valid state tree care license issued by the state of California in order to be allowed to "perform any pruning, maintenance, care or removal of any heritage tree or heritage shrub") to remove eucalyptus trees in the homeowner's yard. The sound of the tree cutter's chain saw alerted the neighbors, who called the director, who sent the inspector (referred to by locals as the "tree police" according to the Times), who stopped the cutting. When the prosecution was over, the homeowner was fined $5,000 and had to plant replacement trees under the supervision of a tree expert, as provided for in the section of the ordinance governing "mitigation requirements for approved and unapproved removals of heritage trees and heritage shrubs."

I could go on (I haven't even mentioned the criminal penalties that can be imposed for unauthorized pruning), but you get the idea. Think this can only happen in some insular community in California? Then you haven't heard about the City of Tucson's plan for rules governing where and when you can place your blue "recycling" receptacle out for collection. Are you ready for the "garbage police?"

 

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