Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY Friday, December 15, 2023 10:00 AM MONTEREY, CALIFORNIA Board members Present: Glenzer, Cheng (alternate) Absent: Millich Board Staff City Attorney Christine Davi, Assistant City Attorney Karin Salameh, and Present: Clerk of the Board Alicia Salas Other Staff Assistant Urban Foresters Thys Norton and Michael Tope, and Building Present: Inspector Bill Moritz CALL TO ORDER Board member Glenzer called the meeting order at 10:00 am PUBLIC COMMENTS None. PUBLIC HEARING 2. Appeal of David Lawrence of the Forestry Division’s Decision to Deny the Application for Removal of a Monterey Pine on a Underdeveloped City Right of Way Adjacent to 801 Parcel Street Board member Cheng stated for the record he did not have any ex-parte contacts or external information to disclose. Board member Glenzer said he did not have ex-parte contacts or external information either. City Attorney Christine Davi stated for the record that she and Assistant City Attorney Karin Salameh have implemented a due-process screen in the office, and she has not discussed this matter with Ms. Salameh or staff. Ms. Davi said all files and communications have been separated to ensure a fair hearing and due process. Public Comments None. Assistant City Attorney Karin Salameh gave her presentation to the Board and took questions. Ms. Salameh asked Assistant Forester Thys Norton to discuss his determination and what he found when he inspected the tree. Mr. Norton said he was familiar with the situation as he had a lot of correspondence with the appellant on various tree issues. Mr. Norton said the issue came up when the appellant said he wanted to install a retaining wall. He said that he noticed that the tree in question had roots that had encroached on the property and the base of the tree was at the property line. Mr. Norton said the tree would have to be pruned but because the tree had an obvious lean away from Mr. Lawrence’s property that makes the roots on the backside of the tree much more important and crucial to that tree’s survival. And because of that, the options are limited in what can be done to fix the situation. Appeals Hearing Board August 28, 2023 Minutes Mr. Norton said the whole trunk is on City property, but the majority of the roots are on Mr. Lawrence’s property. Ms. Salameh said the City asked Building Inspector, Bill Mortiz, to visit the site. He determined that the drainage issues and the retaining wall could be addressed in a way so as to not involve cutting the roots. At that point, she said, the City thought it would not be reasonable to require the removal of the tree if the property of the applicant could be protected in other ways and as a result the permit was denied. Ms. Salameh said for this reason the Department felt it would be unreasonable to cut the roots that have existed on the property for many years and effectively killing the tree, which would require it’s removal. She said the Department is asking that the appeal be denied. Board member Cheng asked Bill Mortiz, City Building Inspector, if there are mitigation measures for the drainage only or did that include mitigation measure for the retaining wall as well. Mr. Mortiz said the retaining wall could be built with the drainage behind it, which is typical. He said, the wall could come further onto the property by cutting the corner or it could be built closer to the roots with a bridge over the top of the roots. Board member Glenzer asked for clarification regarding the fence and where it would be placed on the property. Mr. Norton showed Mr. Glenzer where the property line is and where the fence would go on a photo shown on the overhead. Board member Glenzer asked Mr. Norton to give a little history of the issues on the property. Mr. Norton said Mr. Lawrence applied for a permit to remove a Cypress in the front yard which had a lot of cracking near the home. He said Mr. Lawrence also brought to the Department’s attention some trees that needed pruning in the empty lot near his home that the City owned. Board member Glenzer said when City property, such as this tree, impinges on private property, is that assumed to be ok. Ms. Salameh said there is extensive “tree law”, which are cases that talk about when tree roots or branches go onto the property of another. Ms. Salameh said in those cases the tree roots are akin to a trespasser. However, she said, the courts have said the tree has value and if the roots are not causing damage or inhibiting the use of the property, then it is a reasonableness test. Ms. Salameh said would it be reasonable in this situation to require a tree, on a different property, to be completely cut down. She said for example, there are no foundation cracks and there is no structure that is going to fall down. Ms. Salameh said it would be up to the Board to decide what would be reasonable here in this situation. Board member Glenzer asked if the City had said the retaining wall could not be built at this location, would there have been a different conclusion based on impinging on private property and the reasonableness of that. Ms. Salameh said when Mr. Norton came to her to discuss the situation, she asked him if the problem was drainage and if so, would there be another way to address the issue. Ms. Salameh said if there was no other way that this person’s property could be reasonably protected, then I think Mr. Norton would have reached a different conclusion. David Lawrence, appellant, gave his presentation and took questions from the Board. Mr. Lawrence said he has a very good working relationship with the Forestry Department. He said they are very responsive and helpful. Mr. Lawrence said that he agrees, this issue is a decision of reasonableness. What is reasonable when a City tree infringes on private property. He said as the owner there is a need 2 Appeals Hearing Board August 28, 2023 Minutes to protect that property and the desire to recover the full extent of that property. Mr. Lawrence said the reason he requested to prune the roots was to install a retaining wall which will prevent water from coming onto the property and under the house. Mr. Lawrence said he wanted to talk about what it is like to live on the side of a very steep hill. He said the right of way and the driveway are also very steep and when it rains, water hits the side of the hill, and it runs down along the side of his property. To address that issue, he said he started the process of extending the retaining wall and installing a French drain so the water can be properly drained off. The house was purchased in 2007, Mr. Lawrence said. He said about seven years ago there was a big rain and both the water heater and furnace sustained water damage, which had to be replaced in an emergency. He said it was caused by the water coming down the hill and under the fence. It built up against the foundation under the deck, and went through the vents, which was the cause for the replacement of the water heater and furnace. Mr. Lawrence said that cost about $30,000.00 to repair and it also created a wet environment under the house which causes mold and mildew issues. Over the last winter, Mr. Lawrence said, there were a lot of storms that came through the area. He said there was a lot of water that flooded the backyard, up to the deck and that is how he discovered the real problem. He had a contractor remove the deck during a remodel and discovery how the water was following. He found out that the backyard was not flat and that the hill was pushing the water towards the house. At that point, he said he purchased a sump and ran it continuously. Mr. Lawrence said the water intrusions are very significate and costly. Mr. Lawrence said he is trying to recover the corner of the property that had previously been cut at an angle with the existing fence and make it on grade so he can slope the water away from the house and have it drain properly. He said when Mr. Mortiz came out to view the area, he envisioned a retaining wall and drainage that would maintain the roots but would not allow him to recover the full use of his backyard or to level it to grade to avoid the water intrusion. Mr. Lawrence asked if it is reasonable to keep a City tree that is in a Right of Way, is mainly enjoyed by the people that pass through there, and may only have a certain number of years left. Or is it reasonable to allow a property owner to have full access to their property which would involve removal of the tree. Board member Cheng asked Mr. Lawrence the size of his property. Mr. Lawrence said it is 50 x 100 feet. Mr. Cheng asked how many square feet are taken up by the tree roots; Mr. Lawrence said it is about 15 x 20 feet; it is not a lot, but it is a significant area that he would like to use. Board member Cheng asked if Mr. Lawrence has had any other issues, other than the ones he had already mentioned. Mr. Lawrence said there was water damage to the wood structure, the electrical danger with the water pooling under the house and the fact that is unhealthy. The area is so humid and there is no way to dry it out, so it creates a mold issue that has to be cleaned constantly. Mr. Lawrence said he has done a lot of different things to try to correct the situation and has spent over $100,000 trying to fix the problem. He said when the French Drain was being installed there were so many roots underneath the wooden fence. And in the front yard by the other City tree, that the roots penetrated and lifted the main sewer line which caused backups and a new sewer line needed to be put in. 3 Appeals Hearing Board August 28, 2023 Minutes Ms. Davi said if the Board was considering granting the appeal based on the reasonableness standard, some of the things they could consider or discuss is whether the testimony presented by the appellant demonstrates the extent of the concern caused by the tree and the acceptance of mitigation measures, i.e. are the proposed alternations of a retaining wall reasonable in light of the other factors. Board member Glenzer asked Mr. Lawrence if he got a second opinion on the option the City proposed regarding the tree roots and retaining wall. Mr. Lawrence said when he mentioned the option of building a bridge over the roots to his contractor, the contractor said he would not build the wall in that manner. The contractor said that it was an ineffective and overly complicated way to solve the problem. Mr. Lawrence said if you allow space for the roots then the retaining wall is not retaining anything. Board member Glenzer asked if there are French Drains installed around the foundation of the home are working. Mr. Lawrence said he had just installed them and was waiting for rain to see the results. Board member Cheng asked Mr. Moritz to clarify why a retaining wall that allowed space of the tree roots would not work as stated by the contractor. Mr. Mortiz said that is a matter of opinion. He said as an inspector his job is to inspect that which is presented to him by a qualified individual, i.e. soils engineer or designer who specializes in mitigating the water. Public Comments None. Board Member Discussion Board member Cheng said he would like to find in favor of the appellant but based on what Mr. Lawrence has presented, the City’s presentation, Section 37, and the reasonableness standard, he does not think that he can. He said he is not sure that sufficient facts have been presented of the danger to the property and that those issues cannot be mitigated by other means. Board member Glenzer said he feels as if the burden of proof has been met by Mr. Lawrence. Mr. Glenzer said he believes that the mitigation measures that Mr. Lawrence has already tried are extensive. Board member Glenzer said the Board has not addressed the issue of the property line, which has been weighing on his mind. He made a motion to approve the appeal. At this time Board member Glenzer reopened the Public Hearing, at the request of Board member Cheng and gave each side five minutes to make their case. Board member Cheng asked Ms. Salameh to go over Section 37 briefly. Ms. Salameh said the Board applies four standards. The first is the visual prominence, value, and importance of the tree on the site or in the community. The department’s view is that this is a mature, healthy Monterey Pine and it should be preserved. The second is the tree’s contribution to the aesthetic beauty of the area, again she said this is a beautiful, mature tree that should be preserved. The third standard is evidence or testimony presented by the applicant that demonstrates the extent of concern or anxiety caused by the tree and fourth the exemption of mitigation measures. Board member Cheng asked Ms. Salameh if the department had any argument against reasonableness. Ms. Salameh said that is the general city standard and in a specific situation 4 Appeals Hearing Board August 28, 2023 Minutes like this were you have a tree encroaching on the property, then there is an overarching standard of reasonableness employed by the Courts. She said the Department recognizes that this is not an easy decision, but the Department thought the drainage issue could be addressed by other means. Board member Cheng asked if the Department had any issues with Mr. Lawrences presentation. Mr. Norton said he would disagree with the statement that the tree is only enjoyed by those who pass by it. He said the Department thinks of trees differently, like as a habitat and that the tree is a significant part of the whole canopy cover and how removing that tree might affect the trees around it. Mr. Lawrence asked Ms. Salameh to go over case law regarding the reasonableness issue. Ms. Salameh said the roots are inhibiting Mr. Lawrence from enjoying his property but is cutting the roots necessary. She said that is what the courts will look at and is that a reasonable solution. Mr. Lawrence said in California, you cannot just cut down a tree whose roots are on your property unless they are causing a problem. He said you can if you work it out with the neighbor; the neighbor in this instance is the City. Mr. Lawrence said trees can be replanted and grown in different areas, but the property cannot be moved. He said his argument is that it is unreasonable to ask him to build a different drainage system in that location because whatever is built, he still cannot use that area of his property. Public Comments None. Board member Glenzer made a motion to approve the appellant’s appeal. Board member Cheng seconds the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Glenzer and Cheng NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Millich ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. ADJOURNMENT Board member Glenzer adjourned the hearing at 11:08 am 5  Appeals Hearing Board August 28, 2023 Minutes Respectfully Submitted, Approved, Alicia Salas Kent Glenzer Recording Secretary Board member 6