Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY Monday, August 28, 2023 4:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins, Millich, Cheng (alternate) Absent: Glenzer Board Staff Assistant City Attorney Karin Salameh, Deputy City Attorney Christian Present: Wellisch and Clerk of the Board Alicia Salas Other Staff Assistant Urban Foresters Thys Norton and Michael Tope Present: CALL TO ORDER Chair Hawkins called the meeting order at 4:15 pm CONSENT AGENDA 1. Minutes of February 24, 2023 (Not a project under CEQA per Article 20 Section 15378 and under General Rule Article 15061.) Board member Millich made a motion to approve the minutes. Chair Hawkins seconded the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Millich and Hawkins NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 1 COMMISSIONERS: Cheng RECUSED: 0 COMMISSIONERS: None PUBLIC COMMENTS None. PUBLIC HEARING 2. Appeal of Vicki Williams and Jen Murphy of the Forestry Division's decision to deny the application for removal of a Monterey Pine at 650 Martin Street (Not a Project under CEQA Implementation Guidelines, Article 20, Section 15378 and Article 5, Section 15061) Assistant City Attorney Karin Salameh gave the Board Members an opportunity to disclose any ex-parte communications/contacts. Board Member Cheng indicated that he had driven by the property the Saturday prior to the hearing to look at the tree. He said he spoke with Ms. Williams and Ms. Murphy regarding procedural questions. Chair Hawkins said he visited the site at 650 Martin Street to view the tree. Appeals Hearing Board August 28, 2023 Minutes Deputy City Attorney Christian Wellisch gave a brief statement on behalf of the Department and then introduced Assistant Urban Forester Thys Norton. Mr. Norton gave his background; he said he has a bachelor’s degree in forestry/natural resources and has been a City of Monterey employee for eight years. Mr. Wellisch asked Mr. Norton when he first encountered the appellants, Mr. Norton said it was in the Spring 2023, as they had a permit to remove a different tree. He said the co-assistant forester, Mike Tope, handled that matter as well. Mr. Wellisch asked Mr. Norton if he had inspected the tree. Mr. Norton said he met Ms. Williams and Ms. Murphy at the property but could not remember the exact date. He said he and Mr. Tope did a visual inspection as well as some probing of the tree and the appellants told him about their concerns and how they wanted to pursue removal of the tree. Mr. Wellisch asked Mr. Norton what his assessment of the tree was at that time. Mr. Norton said he did not find that the tree was compromised and explained that if they wanted to pursue removal, an arborist report would be needed. Mr. Wellisch asked Mr. Norton why that report would be necessary. Mr. Norton said an arborist would have more time to do an in-depth inspection of the tree and may justify reasons for removal. Mr. Wellisch asked Mr. Norton if he had kept an open mind with regards to the arborist’s report. Mr. Norton said he was open to the arborist’s report even if that meant removal of the tree. Mr. Norton said he received the application to remove the tree and arborist report on May 27, 2023. Mr. Wellisch asked if Mr. Norton had reviewed the report and what his overall assessment was of it. Mr. Norton said he thought it was a truthful assessment, but it lacked evidence. He said a lot of the report by the arborist was full of observations and theories about the structure of the tree. Mr. Norton said he was hoping to see pictures to show characteristics of an undermined tree that would make it unsafe. Mr. Wellisch asked if the report convinced Mr. Norton that there was enough evidence to remove the tree to which Mr. Norton replied no there was not. Mr. Norton said he reached out to Joseph Bileci, the arborist who wrote the report, to discuss his report. Mr. Norton said he wanted to give Mr. Bileci an opportunity to relay what he was thinking or to further explain his findings. And, he said, to give him a heads-up, that he would probably be requiring more information and evidence. Mr. Norton said he wanted to ask Mr. Bileci to perform a level 2 assessment of the tree. Mr. Wellisch asked Mr. Norton to explain the different levels of a tree assessment. Mr. Norton said there are three levels of assessments. He said level 1 is a visual assessment, level 2 is to knock on the tree, probe the soil for any potential air pockets, etc., and level 3 is much more invasive, where they try to find the character or make up of the tree. Mr. Wellisch asked what level of assessment was presented in Mr. Bileci’s report, Mr. Norton said it looked to him like a level 1 assessment, a visual inspection. Mr. Wellisch asked Mr. Norton how you would characterize the level of assessment he and the co-forester performed. Mr. Norton said he would say it was a level 2 assessment because they used some tools for their inspection. Mr. Norton said neither he nor co-forester Tope heard back from Mr. Bileci. He said at that time, co-forester Tope emailed Mr. Bileci to request more information to pursue the removal of the tree. Mr. Norton said the email response back was that they would not be receiving any further information regarding the tree. 2 Appeals Hearing Board August 28, 2023 Minutes Board Member Millich asked if Mr. Norton had reviewed the packet, Mr. Norton said that he had reviewed it. Mr. Millich asked if he reviewed the overview of the report. He asked if he had found anything inaccurate in it. Mr. Norton said the only thing he could not corroborate is placement and proximity of the roots and that was one of the things he was keeping an open mind about and hoping to receive some supporting photos. He said he cannot speak about the past history of the tree and there are no other records of the tree either. Mr. Norton said he and Mr. Tope have not been employed by the City for very long so they don’t have any previous experience with it. Board Member Millich asked Mr. Norton if there was anything in the report that he would take exception to, Mr. Norton responded no. Board Member Millich asked Mr. Norton, if more physical evidence was needed of the deterioration of the tree in order to determine if the tree needs to be removed, Mr. Norton agreed. Board Member Cheng asked Mr. Norton if a tree was not sick what would be required for removal. Mr. Norton said he would look at the overall structure of the tree and overall site conditions. Each site’s condition is different from location to location and tree to tree. Board Member Cheng asked Mr. Norton if he had ever approved the removal of a tree that was not sick. Mr. Norton said yes, he has and sometimes it is for the betterment of a stand of trees. He said, for example, if there is a group of trees and the grouping would be better off if one of the trees were removed to help with overcrowding, then that tree would be removed. Board Member Cheng asked what the standard is for allowing the removal of trees. Mr. Norton said they do not have very many denials and most of the permits are approved. He said the City is trying to preserve as many trees as it can. Mr. Norton said Monterey is a forested area, so we are trying to manage the forest as best we can. Chair Hawkins asked if there are other reasons why a tree could be removed, such as dropping pine needles. Mr. Norton said that did not exist when he looked at the tree. He said the tree might have a little more access to water so that might play into the health of the tree and why we did not see dry needles. Michael Tope, Assistant Co-forester, said he is a certified arborist and has been in the tree care industry for 12 years. He took questions from Mr. Wellisch and the Board Members. Mr. Wellisch asked Mr. Tope if he had inspected the tree and reviewed the report; Mr. Tope said he did. Mr. Wellisch asked Mr. Tope if he and Mr. Norton had inspected the tree at the same time or at different times. Mr. Tope answered that they (he and Mr. Norton) had inspected the tree prior to receiving the permit application. He said, after that they both inspected the tree separately. Mr. Wellisch asked what the result of the assessment of the tree was and whether it should be removed. Mr. Tope said they did a visual assessment as well as a Level 2 assessment with basic tools and they found the tree to be healthy. Based on that, they decided to deny the permit application for removal. Mr. Wellisch said he was going to go over the arborist report with Mr. Tope. Mr. Wellisch said the report states that the tree is healthy but still found reasons that it posed a risk. He stated the report lists a high risk of failure by uprooting and that it lists various events that have occurred over the past five years. Mr. Wellisch asked Mr. Tope if any of those events indicate the risk of this particular tree. Mr. Tope said based on their inspection, the soil looked intact, the roots looked healthy, and since this tree has been through several storms, the canopy looked healthy as well. He said when they looked at the tree from different areas and different 3 Appeals Hearing Board August 28, 2023 Minutes streets to determine which direction the prevailing winds and/or winds from a storm would be coming from it looked like the tree had held up well. Mr. Wellisch said the second reason listed in the report for a high risk of failure is due to the large codominant stems near the top. Mr. Tope said a codominant stem occurs when you have two trunks with bark included in between the trunks. He said there tends to be a lot of weight on both sides, which could pose a risk of failure. He said in this case the codominant stems are up in the canopy. Mr. Tope said there are mitigation factors to help reduce the weight of the canopy and that could lower the risk of failure. Mr. Wellisch asked Mr. Tope if a codominant stem higher in the canopy poses a lower risk than if it was down lower on the tree trunk. Mr. Tope said that is correct, the lower the codominant stem the more of an issue it becomes due to the weight and height on two separate trunks both of varying weights. Mr. Wellisch asked Mr. Tope to elaborate on the bark that grows in between the codominant stems and how that could pose a risk. Mr. Tope said a lot of time when you have a codominant stem there is included bark which leads to a weaker branch attachment between the two trunks and the tree. He said there is also a chance for moisture and debris to enter the trunks which could lead to a higher chance of failure. Mr. Wellisch asked if the codominant trunks pose a risk because the particular way it grows with the bark growing into the trunk; Mr. Tope agreed. Mr. Wellisch asked if there was any evidence in the arborist report of such an issue. Mr. Tope said there are not any pictures in the report and there is no indication in the report where the defect would be. Mr. Wellisch said the next possible risk, according to the report, was the failure of the main trunk as identified by the crook or stress point. He asked Mr. Tope to describe what the crook means. Mr. Tope said it looks like the tree had some reaction wood at a young age and said it probably started growing a certain way towards the sunlight. Mr. Wellisch asked Mr. Tope if he saw any indication of a wound or crack versus a natural change in direction or bend in the tree. Mr. Tope said from the information he gathered; it looked like a natural growing process. He said if it was a crack, it would be obvious, especially when using binoculars. Mr. Wellisch asked Mr. Tope about the high risk of damage to the foundation of the Murphy residence. Mr. Tope said what he has seen in the past, regarding foundation damage, is a crack in the foundation that goes up the foundation. He said there is no report from an engineer to state how the foundation is cracking and no pictures to show foundation damage either. Mr. Wellisch said that the report states that there is no reasonable method of mitigation for all the risks posed by the tree. He asked Mr. Tope if the Department agrees with the conclusion in the report. Mr. Tope said the Department thought there could have been a lot of pruning for weight reduction and thinning out the canopy to reduce the wind load during storms. Mr. Wellisch stated that the report, to the untrained eye, may appear to be a fairly sophisticated report, but as Mr. Tope stated previously it is lacking in evidence. Mr. Wellisch asked Mr. Tope if it is fair to say that the report jumps to conclusions based on generalized characteristics as opposed to evidence in this particular case; Mr. Tope agreed. Mr. Wellisch stated that Mr. Tope did ask for more evidence, but did not receive it. Chair Hawkins asked Mr. Tope if the winds are less impactful lower on the downhill side where the wind comes from in the West. Mr. Tope said that is correct. He stated that the winds at the top of Huckleberry Hill are pretty catastrophic with all the wind that comes from the coast. He said some areas are protected from that wind pattern. 4 Appeals Hearing Board August 28, 2023 Minutes Board Member Cheng asked who drafted the Decision. Ms. Salameh said that the Department drafted the Proposed Decision. Board Member Cheng said in the Proposed Decision there is reference to immediate danger. He asked if that was a standard and if the tree has to be an immediate danger in order to remove it. Ms. Salameh said the criteria in the City Code is what the Forester applies when evaluating tree removal permits and then the Board has additional factors they can consider. Board Member Millich asked Mr. Tope what the lifespan of a Monterey Pine is. Mr. Tope said they have a relatively short lifespan of 80-100 years roughly. Board Member Millich asked since this one is 80-90 years of age, about how long does this one have left in it. Mr. Tope said based on the overall health of the tree, it could have 10-20 years or more but it’s hard to determine. He said the tree could be younger based on water and nutrient absorption. Jen Murphy, appellant and resident of 640 Martin Street gave her presentation to the Board. Ms. Murphy stated that on various pages in the packet the tree in question is described as being at 650 Martin Street, but it is actually at 640 Martin Street. Ms. Murphy said the report states that both foresters inspected the tree, probed the soil and concluded that the tree was not going to be a hazard and posed a low risk. Ms. Murphy said only one forester, Thys Norton, came to the property on June 7 to inspect the tree. She said she spoke with Mr. Norton that day and he said he would be the one to inspect the tree. Ms. Murphy stated Michael Tope did not inspect the Monterey Pine tree as part of the removal process, however, he is the Assistant Forester who issued the denial. She said in an email from June 14 from Mr. Tope it states that based on his inspection on June 7, 2023, he is not approving the removal of the Monterey Pine tree in question. Ms. Murphy said Mr. Tope’s decision did not outline his findings or specific standards to support his decision and she believes his assessment should be disregarded as he did not actually inspect the tree. Vicki Williams, appellant and resident of 650 Martin Street, said that on December 31, 2022, at around 3:00 pm a Monterey Pine tree fell on the garage of her home. She said it was not an old tree, but it had gotten whipped around by the storms and it landed on her garage that day. Ms. Williams said she has lived on the Mira Bella property for 32 years and has been the treasurer for the Homeowners Association for 25 of those years. She said the HOA has arborists walk the property every year for a walk-through inspection. Ms. Williams said two arborists said that when the tree comes down, it will hit her property, which has caused her a lot of anxiety. Ms. Williams stated that prior to submitting their application to remove the tree at 640 Martin Street, both Mr. Norton and Mr. Tope came to the property in early May. She said they listened to our concerns, and she was aware, in speaking with them, that the tree appeared healthy. Ms. Williams said both foresters were on the property for about ten minutes with her and Ms. Murphy. Ms. Williams said the foresters told her they would need a full arborist review of the tree. The foresters said they should submit that report along with the application and the fees. Ms. Williams said she submitted the application to the forester’s office on Thursday, June 1, 2023, along with the fees. She said on Thursday, June 8, 2023, she received an email from arborist Joseph Bileci, who stated the request had been denied because the City needed more information than the arborist report provided. Ms. Williams said her options were to either appeal the denial within 10 days to the City Attorney’s Office or drop the request to remove the tree. Ms. Williams said on Monday, June 12, 2023, Ms. Murphy sent an email asking the forestry department the reason for the denial. She said Mr. Tope responded on Thursday, June 14, 2023, saying per his inspection of June 7, 2023, I am not approving the removal of the Monterey Pine tree in question with no further explanation. Ms. Williams said Mr. Tope stated 5 Appeals Hearing Board August 28, 2023 Minutes in his email that if they wanted to file a Request for Appeal, they would have to do that within 10 days of the denial. Ms. Murphy said that it only gave her two days to file the appeal. Ms. Williams stated she is here hoping to get clarity on the past denials and gain approval to move forward with the removal of an unsafe pine tree. Ms. Murphy again spoke to the board addressing her anxiety with the tree. Ms. Murphy pointed to photos of her deck from the packet. She said the damage was caused by another healthy tree on the property less than four years ago. Ms. Murphy stated there is damage to the roof and the deck. She said the tree that damaged her property is less than five feet away from the tree in question. Ms. Murphy stated there is a history to this property of healthy trees falling. Ms. Murphy said during last winter’s storms she slept on her couch for about a month and a half in fear the tree would come down. Finally, Ms. Murphy said to date the Forestry Department has not addressed or provided any reasoning about why or how this tree does not create a hazardous situation. Ms. Murphy stated in contrast, she and Ms. Williams have provided an arborist report and a written statement that the tree presents a high risk of uprooting, a high risk of codominant failure and a moderate risk of main trunk failure. Each of these, she stated, creates a hazardous and dangerous scenario for both 640 and 650 Martin Street. She further stated that the documentation she provided details how this tree’s advanced age, its size, its lean and its design are all hazardous. Ms. Murphy said they have provided ample evidence that the property routinely consults tree experts and arborists and maintains trees to protect both residents and homes. Ms. Murphy stated the forestry’s conclusion that proper pruning can greatly reduce or eliminate this tree’s falling limbs and uprooting, does not address that the tree is approaching its end of life, its exceptional size, the root system intruding into her home’s foundation, the almost 10 degrees lean toward Ms. Williams home, and, most significantly, it does not address the risk of codominant stem failure that this tree presents. Ms. Murphy said she is here to advocate for the removal of one dangerous old pine tree so that they can replant in a new safer location, which will in time replenish and contribute to the peninsula’s overarching canopy for the next 75+ years. Pat Venza, resident of Monte Vista neighborhood spoke and stated she too was anxious last winter regarding the trees on her property. Board Member Cheng noted that the Forestry Department cannot take anxiety of the appellant into consideration when making their determination, but the Board can. Public Comments None. Chair Hawkins set a five-minute reply time for each side. Deputy City Attorney Christian Wellisch said a lot has been said about anxiety because that was a question posed by the Board; he said he does not doubt the appellants’ sincerity. Mr. Wellisch said it is understandable for someone to be anxious, especially in light of the recent storms, about a tree that is in close proximity to a home. Mr. Wellisch said that is why those claims need to be taken with a grain of salt, because that level of anxiety is not what determines if a tree should be removed or not. That is the point of performing tests to see if there is any real reason to remove the tree, to see if it is actually going to cause damage. Mr. Wellisch said otherwise there would be an open standard where anyone could say they are anxious about a 6 Appeals Hearing Board August 28, 2023 Minutes tree for whatever reason, like for a better view for instance. He said this is not a workable standard. Mr. Wellisch suggested that there has to be scientific proof that the tree has a connection to the anxiety of the appellant and that is likely to fail or cause damage. Mr. Wellisch said the Department was far from close-minded, they reached out to request more evidence as the report mostly contained conclusions based on generalities without facts to form a foundation for those conclusions. He said when pressed for additional evidence, the appellants did not provide any and here the burden of proof is on the appellants. Mr. Wellisch said they have to convince the Board that the decision made by the Foresters was wrong. Mr. Wellisch said the inspection, which the Forester testified today, was a higher level of inspection, not because of the time spent but because of the nature of the intrusiveness of the inspection. He said the department actually called the arborist to request additional information to support the report but did not receive anything in response. Mr. Wellisch concluded by saying if there was evidence that this healthy tree, which the report agrees is healthy, needed to be removed, then the permit would have been granted, but no such evidence was presented in the report or for this hearing. He said based on the applicable standards, sufficient evidence has not been presented that this tree poses a significant risk and needs to be removed. Mr. Wellisch said that the level of anxiety experienced by the appellants without evidence to support that is an insufficient reason to remove the tree. Ms. Murphy said both the application and arborist report were submitted to the Forester prior to them coming to inspect the tree; they had an opportunity to review it before coming to the property. This tree, Ms. Murphy said, is coming to the end of its lifespan and is the oldest tree on the property. She said the tree is somewhere between 80-90 years old. Ms. Murphy said this tree, according to the Department of Agriculture, is classified as exceptionally sized due to its 45-inch diameter. She said it is of advanced age and it has the codominant stem flaw. Ms. Murphy said so many trees have fallen on this property in the last five years, including the one that fell on December 31, 2022. She said that one put her on edge for the next three months. Ms. Murphy said the property has so many trees and that they are only looking to remove this one tree that could present a danger, especially in light on the upcoming winter which is forecasted to be another damp and crazy winter. Board Member Discussion Board Member Millich said when looking at the anxiety issue, there is a lot with the past history of trees falling on the premises, the fact that this is the oldest tree on the property, and the devastation that would be caused or the loss of life, perhaps. Board Member Millich said he thinks that the reasons he listed justifiably back up the feelings of the appellants. Board Member Millich said there are 149 trees on this property and one of the things the Board can look at when making a decision is what effect it will have if it is removed. He said it would have virtually no affect, especially when the Board can require that they replant under the direction of city staff. He said he thinks city staff is doing its job, but they do not have the same factors to consider when making a determination. Board Member Millich said they are justified in their anxiety, and it is justified to remove the tree. 7 Appeals Hearing Board August 28, 2023 Minutes Chair Hawkins said he has lived in the area with pine trees for the last 60 years and he believes there is an advantage to planting new pine trees. He said the city will reap the advantages in 50-60 years. Chair Hawkins said if things keep progressing in the way they are, the city is going to end up with an old forest. Board Member Cheng said he believes that city staff and the forester did a good job, and the issue was well presented. He said this board is able to take more into consideration when making a decision. Chair Hawkins said he is impressed that Mira Bella Oaks has an arborist to the property every year. He said he appreciates that, and it shows they care about the issue. Assistant City Attorney Karin Salameh asked Board Member Millich to amend his motion in light of the prior legal guidance, that when a healthy tree, as determined by the forester, has not been through a CEQA review, the Board could conditionally grant the appeal and the tree permit, subject to completion a CEQA review by the Planning Office. Board Member Millich said he would not amend his motion and restated his motion: that the Board allow removal, the appeal be granted and that the appellants be directed to plant trees in replacement, which would be in pursuant to the City’s guidelines and at City staff direction. Board Member Cheng seconded the motion. Ms. Salameh said CEQA requires that the City conduct an environmental review when healthy trees, as determined by the City Forester, are approved for removal. She stated the City is subordinate to the State and must follow State law. She reminded the Board that she gave her legal advice, and that the board is representing and acting as the City. Board Member Millich said he would be willing to add that as an alternate motion; he said he would like a double motion. Board Member Cheng asked Ms. Salameh for statutory guidance that he could read to see if a healthy tree removal is subject to CEQA review. Ms. Salameh said the Board could recess and come back at a later date if Board Member Cheng wants to review the memo from outside counsel. Board Member Millich asked what the practical delay on a CEQA review was. He said if it is six months or a year, then he would consider this an emergency situation with the winter coming. Ms. Salameh said that the Planning Department generally advises six months for CEQA review. Board Member Millich said that would put the review past the winter. He said the review has to come before that time, so he would consider this an emergency situation which is why his motion is what it is. Board Member Cheng asked Ms. Salameh to briefly explain the statutory framework of CEQA, which she did. Board Member Millich asked if they can issue the removal then require the study to be done afterwards. Ms. Salameh said no, that would violate CEQA. Chair Hawkins said what if three new trees were planted and then monitor the tree in question. He said in the meantime, there are three new trees and if the tree in question should exhibit any 8  Appeals Hearing Board August 28, 2023 Minutes issues, then it could be removed. Ms. Salameh said the Board did not have the authority to ask someone to plant trees absent the removal of one. Board Member Millich added that solution would not provide any immediate relief for the appellant. Board Member Millich said the most the Board can get step one going in the process to remove the tree. He said the best the Board can do is grant the appeal and when the tree is removed, they replant three trees at the direction of City staff and if they are told to comply with CEQA by staff they have to do it. Board Member Millich said in essence we are granting the appeal but not the removal of the tree. Ms. Salameh said in the past, the Board has granted the appeal and conditionally approved the permit subject to CEQA review. Board Member Millich made a motion to grant the appeal and conditionally approved the permit for removal subject to the CEQA process. Board Member Cheng seconded the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Hawkins, Millich, Cheng NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS Board Member Cheng said Ms. Salameh, Mr. Wellisch and the Foresters did a great job. Chair Hawkins said the forest needs new trees which are all part of a sustainable forest. Board Member Millich said CEQA needs to be readdressed in more than one area. Ms. Salameh said the City Attorney’s Office is working on a revision to the Tree Ordinance that would need to go to Council and hopefully it will address some of these issues. ADJOURNMENT Chair Hawkins adjourned the hearing at 5:49 pm Respectfully Submitted, Approved, Alicia Salas Stephen Millich Recording Secretary Vice Chair of the Board 9