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PC Min - 06/28/2011CITY OF CAMPBELL PLANNING COMMISSION MINUTES 7:30 P.M. The Planning Commission meeting of June 28, 2011, was called to order at 7:30 p.m., in the Council Chambers, 70 North First Street, Campbell, California by Chair Roseberry and the following proceedings were had, to wit: JUNE 28, 2011 CITY HALL COUNCIL CHAMBERS TUESDAY ROLL CALL Commissioners Present Chair: Vice Chair: Commissioner: Commissioner: Commissioner: Commissioner: Commissioner: Bob Roseberry Theresa Alster Brian Brennan Mark Ebner Elizabeth Gibbons Paul Resnikoff Philip C. Reynolds, Jr. Commissioners Absent: Staff Present: APPROVAL OF MINUTES None Community Development Director: Planning Manager: City Attorney: Recording Secretary: Kirk Heinrichs Paul Kermoyan William Seligmann Corinne Shinn Motion: Upon motion by Commissioner Reynolds, seconded by Commissioner Resnikoff, the Planning Commission minutes of the meeting of May 24, 2011, were approved with one minor correction. (6-0-0-1; Commissioner Brennan abstained) Campbell Planning Commission Minutes for June 28, 2011 Page 2 COMMUNICATIONS There were no communications items. AGENDA MODIFICATIONS OR POSTPONEMENTS There were no agenda modifications or postponements. ORAL REQUESTS There were no oral requests. *** PUBLIC HEARINGS Chair Roseberry read Agenda Item No. 1 into the record as follows: 1. PLN2011-143 Public Hearing to consider an Appeal (PLN2011-143) by Mike Kagel, M & K and Kimberly Kagel of an Administrative Denial of a Tree Removal Permit (PLN2011-100) for the removal of a 36-inch diameter Coastal Redwood Tree in the rear yard of property located 1088 E. Campbell Avenue in an R-1-6 (Single Family Residential) Zoning District. Staff is recommending that this project be deemed Categorically Exempt under CEQA. Planning Commission action final unless appealed in writing to the City Clerk within 10 calendar days. Project Planner: Steve Prosser, Associate Planner Mr. Paul Kermoyan, Planning Manager, presented the staff report as follows: • Reported that a Tree Removal Permit application was filed in April. • Said that a site inspection was performed to compare the tree's condition against the required findings to approve its removal. Staff found that those required findings could not be made so the Tree Removal Permit was denied. • Described the tree as a Redwood that is relatively large and tall. • Explained that an arborist's report was submitted by the applicant that reflected some hazardous conditions associated with the tree although the report rated the tree as being in relatively good health. The report indicated that the tree was in reasonable health structurally but had undergone prior topping. There has been some split in the past and some ground disturbance. This is a solo tree that is not protected by the canopy of other nearby trees, which makes it more susceptible to stress. The report recommended removal. • Advised that the required findings include: finding the tree is diseased or in danger of falling; the tree is causing damage or the tree is impacting the property owner's economic enjoyment of their property. Campbell Planning Commission Minutes for June 28, 2011 Page 3 • Informed that the City's arborist was sent to the site. The tree was found not to be a bad specimen. It is in the best location, off to the far back corner of the rear yard. There is an obligation to maintain such a tree with trimming. • Added that the finding of damages caused by a tree is intended to reflect damage to the main building(s) and not damage to walkways or arbors. • Said that the finding of impacts to economic enjoyment requires something very unique as far as negative impact. • Reiterated that staff could not make the findings to support removal of this tree. • Added that staff usually supports the majority of such requests. • Recommended that the Commission uphold the Director's action to deny this Tree Removal Permit. Commissioner Ebner asked if staff had looked at the root situation from the neighboring property. Planning Manager Paul Kermoyan explained the project planner, Steve Prosser, did not visit the neighbor's property but in looking at an aerial photograph, there is a pool and hardscape on that property. Commissioner Alster advised that she had made a site visit and would explain in detail at the conclusion of the staff report. Commissioner Brennan said that if it's true the roots of this tree are deep, how do they cause disruption to hardscape. Planning Manager Paul Kermoyan explained that even with deep roots, a tree can still lift hardscape. He added that the unevenness of the hardscape surface is not substantial. The owner could fill voids, grind lifts and/or relocate the walkway away from the root zone. Chair Roseberry opened the Public Hearing for Agenda Item No. 1. Ms. Kimberly Kagel, Appellant/Property Owner: • Explained that this tree was there when she and her husband purchased this home and they both love it. • Reported that her husband experienced a massive brain injury approximately seven years ago and is permanently disabled. She now has full responsibility as the sole provider of their household. • Added that this tree died up top. JP Tree Service came to clean it out and topped off the dead part of the tree. Following the topping, it got sucker growth. During a bad storm, a large section of the sucker growth broke off and ended up in a neighbor's yard. Her dad removed it. • Stated that she is concerned about potential damage to neighbors' properties. • Recounted that about three years ago an insurance adjuster came to her home unannounced and asked about dogs and trees in her yard. She showed him her Campbell Planning Commission Minutes for June 28, 2011 Page 4 two small dogs and allowed him to see the trees in her rear yard. Her Homeowner's Policy went up. • Said that she bears the financial burden for her household on her shoulders for the rest of her life. It costs about $1,000 to have this tree trimmed. It is lifting their walkway. • Added that she could not relocate the walkway except to the middle of the grass area. • Explained that her husband is also sight impaired, trips often and falls. She would have to repair this walkway constantly. She said she had been told that she could not simply grind the walkway but rather would have to remove and replace it. • Stated that she loves this tree and always has loved it. • Added that she is not sure if the rear neighbor has ever cut the roots. The arborist simply looked over the fence to make that determination. • Said that she is afraid this tree will keep splitting. There is a ball at the base of the tree and they clean it up constantly. • Reported that both Commissioner Reynolds and Commissioner Alster came to see the tree in person. • Said that she doesn't want this tree to get bigger. Commissioner Ebner asked Ms. Kimberly Kagel which areas are lifting. Ms. Kimberly Kagel said it is occurring in several areas. Commissioner Ebner said that he has had problems with trees lifting hardscape in the past and suggested removing the portions being lifted and replacing it with tightly packed gravel instead. Ms. Kimberly Kagel said that the existing concrete pathway goes all around. She said that aesthetically the change of one section to gravel would not look nice. Commissioner Reynolds said he too made a site visit and would like to re-ask his questions to Ms. Kagel at that time for the record. He asked Ms. Kagel if she is willing to replace this tree with another. Ms. Kimberly Kagel replied yes, if necessary. Commissioner Reynolds asked Ms. Kagel if she knows the approximate age of this tree. Ms. Kimberly Kagel said her neighbor once recounted that she had planted the tree with her father as a young child. It was probably about 1963-1964. Commissioner Reynolds asked Ms. Kagel if the tree has historic value. Ms. Kimberly Kagel said "not that she is aware of and said that the tree wasn't disclosed as such at the time of their purchase of the property. Campbell Planning Commission Minutes for June 28, 2011 Page 5 Commissioner Gibbons asked Ms. Kagel if she knows the cost for removal of this large tree. Ms. Kimberly Kagel said that it would be very pricey, approximately $2,500, not including grinding the stump. She reiterated her concern that this tree could damage other properties. She could end up in court if such damage occurs or her homeowner's insurance rate could increase further. Commissioner Gibbons advised Ms. Kagel that she would have to replace this tree. She added that the issue for this Commission is to understand the context of the hardship caused by this tree and Ms. Kagel has explained it. Ms. Karen Kay, Resident on Arroyo Seco: • Explained that she is the rear neighbor. • Advised that she and her husband are both thrilled that these neighbors want to remove this tree. • Pointed out that if this tree were to fall, it would land on their home. • Reported that the tree constantly drops debris into their yard and pool. • Agreed with Ms. Kagel's contention that something happened when this tree was topped. • Assured that she and her husband never intentionally cut roots from this tree from their yard. • Said that this is an emotional issue because she loves trees but hates this one. She'd love to see it gone. It's an accident waiting to happen and four families could potentially be devastated if that tree goes down. City Attorney William Seligmann asked the Commission to enter into the record the results and/or observations of any individual Commissioners' visits to the site. Commissioner Alster: • Reported that she made two site visits. One visit was to the appellant's property. She walked the property and saw where the cracks were. She noticed the split in the tree. She said that the tree looks like it needs pruning and pruning for a tree this size is probably expensive. • Added that her second visit was to the back fence neighbor's property, the Kay's home, where she spoke with Mr. Kay. Mr. Kay advised that he'd like to see this tree removed. He assured that he had never cut or even seen a root from this tree in his yard. He added that the tree leans on the fence and he has had to support the fence as a result of that leaning. He reiterated that he would love to get rid of this tree and that he has never cut roots of this tree. • Said that this tree is magnificent. Commissioner Reynolds: • Said that he didn't visit the back neighbor's property. • Said he did also look at damage to sidewalks and noticed the splitting at the top. Campbell Planning Commission Minutes for June 28, 2011 Page 6 • Added that he looked at other large Redwood trees in the community and, to him, this single tree did stand out as a potential hazard. • Stated that he didn't observe root damage but the concrete damage is clearly visible. Chair Roseberry said that members of the Commission often conduct independent drive by site visits but don't usually go onto the property. City Attorney William Seligmann said that any Commissioner should provide information derived from his or her own observations as a disclosure for the record before the close of a public hearing. Chair Roseberry advised that he did a drive by and looked at the tree from the road. Commissioner Gibbons said that usually members of the Commission disclose if they have had any conversations about a project coming before the Commission. City Attorney William Seligmann said that this is a due process issue that all evidence be disclosed. Commissioner Resnikoff said that he did adrive-by as well but didn't engage in conversation with anyone. Commissioner Gibbons said she did also drive by but did not speak to anyone. Chair Roseberry closed the Public Hearing for Agenda Item No. 1. Commissioner Ebner: • Stated that he is not an expert on trees but once owned 20 acres of Redwood forest. • Reported that he has never known a Redwood tree to fall over. It is adeep-rooted tree. • Recounted that a neighbor two houses from his has a Redwood tree that is twice the size of this one. Wind cleans that tree out very well. • Said that it is unfortunate that there is a pool right next door as it is not a clean tree. • Added that he is sensitive to Mr. Kagel's health issues but pointed out that this is a big yard. • Said that for Mr. Kagel's safety, the sidewalk will need to be repaired no matter what happens with this tree. • Added that this is a healthy Redwood tree, a species that is not known to fall over. • Said he supports the Director's action to deny this tree removal. Commissioner Gibbons: • Said that she has a hard time with this one. • Explained that she too has a Redwood tree on an adjacent property that is three times the size (diameter) of this one and with a split trunk. It is a beautiful tree but Campbell Planning Commission Minutes for June 28, 2011 Page 7 she said she hates it. She said she's not sure how she would react if her neighbor wanted to remove it. That tree sways in the wind and can be terrifying. • Stated that she is disappointed with the arborist's report provided. Some trees are meant to move. Sometimes single trees are more problematic than trees located within a grove. • Said that using basic principles, this tree could be maintained. • Concluded that the economic burden to this appellant appears to be their chief concern. Commissioner Reynolds: • Said that after talking with the homeowner, he has a good idea where they're coming from. • Reminded that the tree has no historic value and the owner is willing to replace it. • Said that the economic hardship is represented by damage. • Added that he tends to err on the side of caution and that there has already been the case of one limb falling off and it could be worse in the future. • Said that this is a single tree. This is not a forest but rather it is a neighborhood. • Suggested that if this tree were to be replaced, it would not be a big loss to allow its removal. • Said that he would side with the homeowner on this one. Commissioner Resnikoff: • Said that he is struggling. • Added that he has a Redwood in his yard. • Pointed out that two arborist reports have found this tree to be structurally sound. • Advised that he was formerly on the Parks and Recreation Commission, which evaluated tree removals of trees in the public right-of-way (i.e. park strips). • Added that he respect's the opinion of the City's arborist, Vince Huppe, who indicates this tree could be retained with maintenance. • Concluded that he is not sure the criteria has been met to support removal. Commissioner Alster: • Expressed agreement with Commissioner Ebner. • Reminded that required findings include disease; danger of falling and economic hardship. • Agreed that the economic times are tough and that trees can be expensive to maintain. • Said that she is stunned that the appellant's arborist indicated that roots had been cut by a neighbor when they weren't. There were no roots to be found in the neighbor's yard. • Reiterated that trees require regular maintenance. Commissioner Ebner: • Said he too is torn about this and is sympathetic to the situation of this family. • Stated that all issues raised seem to be aesthetic and maintenance issues to prevent the husband from tripping. Campbell Planning Commission Minutes for June 28, 2011 Page 8 • Added that he wants to work on that issue as any future tree could cause similar problems with the hardscape on site as it matures. • Said he agrees with Commissioner Alster that this is a maintenance issue. • Stated that this is a beautiful yard that is well tended and idealic. • Said that as this tree is healthy, it should stay. • Added that he too is surprised that the appellant's arborist suggested that root cutting had occurred from the neighbor's side. Commissioner Brennan: • Reported that this is his first such application as a member of the Commission. • Said he understands the reasons for requesting this tree removal. • Said that the criteria for economic hardship and the potential danger of falling limbs have been presented. • Added that he would not want potential danger like this in his yard either. • Concluded, however, that the criteria probably still doesn't justify removal of this tree based on the language of the ordinance. Chair Roseberry: • Admitted that he has struggled with this too. • Reported that he is experienced with Redwood trees having worked at UC Santa Cruz for several years. • Agreed that wind doesn't bring Redwood trees down. They have relatively shallow roots and these trees continue to grow and become huge. They are not set up for suburban settings. • Added that he has one in his yard but it is far enough away from his house. That tree has quadrupled in size in the last 15 years and will eventually have to come out at some point. When Redwoods get really big, branches will come off. "Widow maker" branches can come down. • Stated that Redwoods are beautiful trees but not a great landscaping tree. • Said that the Commission is bound by the rules and regulations that require it to make required findings to support this request. • Concluded that the economic hardship is a future finding. • Questioned the liability issue raised and what the City's responsibility is for decisions like this. • Reiterated that he does not think this tree will fall over but tree branches can and do die off and fall. • Opined that this tree will become a liability some time in the future. Again it is not a great landscaping tree. • Added that it seems this tree is approximately 50 years old. The person who planted it as a small tree probably didn't think out how big it could get 50 years ahead. • Ran down the findings. o Disease and danger of falling: not applicable. o Potential damage: case could be made. o Economic enjoyment and hardship: can't make this one. The enjoyment of the property is not in danger. Campbell Planning Commission Minutes for June 28, 2011 Page 9 • Reiterated that maintenance is a part of property ownership. Commissioner Brennan asked the City Attorney about the liability issue. City Attorney William Seligmann asked Commissioner Brennan if he means the homeowner's liability. Commissioner Brennan asked; since the City is not allowing removal of this tree, does the City bear some responsibility should damage occur. City Attorney William Seligmann said that the City has immunity against liability for a tree on private property. The homeowner does have liability for damage caused if their tree and/or its limbs should fall onto a neighboring property. Chair Roseberry added that the liability borne by the homeowner is usually shifted to their homeowner's policy. City Attorney William Seligmann agreed. Commissioner Resnikoff reported that the Pistache tree in the curb strip in front of his house has dropped branches twice. There is a danger of branches falling from trees other than a Redwood. Commissioner Gibbons: • Said that the issue is maintenance. Routine maintenance would help minimize the danger of falling limbs and resulting damage to property. Trimming would need to occur every four years or so to prevent sucker growth. • Concluded that if the tree can be maintained there is not much ground to support removal. • Advised the appellants, Mr. and Ms. Kagel, that the City Council could make a different decision but this Commission must make a decision based on the three required criteria/findings. Motion: Upon motion of Commissioner Gibbons, seconded by Commissioner Alster, the Planning Commission adopted Resolution No. 4028 denying the Appeal (PLN2011-143) and upholding the Administrative Denial of a Tree Removal Permit (PLN2011-100) on property located at 1088 E. Campbell Avenue, by the following roll call vote: AYES: Alster, Brennan, Ebner, Gibbons and Resnikoff, NOES: Reynolds and Roseberry ABSENT: None ABSTAIN: None Chair Roseberry advised that this action is final unless appealed in writing to the City Clerk within 10 calendar Days. Campbell Planning Commission Minutes for June 28, 2011 Page 10 ~.** REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR Director Kirk Heinrichs added the following updates to the written report: • Advised that Council met in a Study Session and directed staff to bring a resolution forward to enact the Mills Act, which provides incentives for owners of historic structures. A pilot program would be established that would allow up to five Mills Act contracts. The City does lose property tax income with such contracts. • Reported that an agreement between San Jose and Campbell regarding the future annexation of Cambrian 36 is still being negotiated. The final proposal will likely be reviewed by Council in August. • Announced that a Council Study Session will be held on July 19t" on the Downtown Alcohol Beverage Policy. ADJOURNMENT The Planning Commission meeting adjourned at 8:35 p.m. to the next Regular Planning Commission Meeting of July 26, 2011 (the meeting of July 12, 2011, has been cancelled). SUBMITTED BY: Corinne Shinn, Recording Secretary .. ~ ~ ~. ' .' APPROVED BY: ~~ ua ~G~ ~ ' Bob Roseberry, Cha' f ATTEST: Kirk Hein ' s, ecretary