Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY Wednesday, February 21, 2024 10:00 AM MONTEREY, CALIFORNIA Board members Present: Millich, Glenzer, Cheng (alternate) Absent: none Board Staff City Attorney Christine Davi and Clerk of the Board Alicia Salas Present: Other Staff Assistant City Attorney Karin Salameh, Assistant Urban Foresters Thys Present: Norton and Michael Tope CALL TO ORDER Vice Chair Millich called the meeting to order at 10:00 am PUBLIC COMMENTS None. PUBLIC HEARING 1. Minutes of August 28, 2023 Board member Cheng made a motion to approve the minutes. Board member Millich seconded the motion. The motion was carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Millich and Cheng NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 1 COMMISSIONERS: Glenzer RECUSED: 0 COMMISSIONERS: None 2. Minutes of December 15, 2023 Board member Glenzer made a motion to approve the minutes. Board member Cheng seconded the motion. The motion was carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Glenzer and Cheng NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 1 COMMISSIONERS: Millich RECUSED: 0 COMMISSIONERS: None  Appeals Hearing Board February 21, 2024 Minutes 3. Appeal of Kyle Shanks, Torras Leasing Co., of the Forestry Division's Decision to Deny the Application for Removal of a Monterey Cypress at 222 Ramona Avenue (Not a Project under CEQA Implementation Guidelines, Article 20, Section 15378 and Article 5, Section 15061) Thys Norton, Assistant City Forester gave the Department’s presentation and took questions from the Board Members. Board member Glenzer asked about the rating from the Arborist Report and why the tree was rated as an 11 on a scale of 1 – 12 with 12 being the riskiest. Mr. Norton explained that the tree is on the high side with anything 9 and above considered high risk. He said it is easy to get to that number, regardless of its structure, because it is so close to the pedestrian right-of-way, where cars are parked, and to the building. In addition, the included bark and gopher activity, increase the risk value the tree is given. Board member Glenzer asked about the sidewalk issue and the uplifting in the area around the tree. He asked if someone was to get hurt because of the uplift who would be liable. Assistant City Attorney Karin Salameh said that under the City’s Sidewalk Ordinance, if the uplift on the sidewalk is caused by a private tree, then it is the responsibility of the private property owner to maintain the sidewalk. She said there are things that can be done to mitigate the issue without removing the tree and the City does this regularly for City trees and sidewalks, which include shaving the root and grinding the uplift on the sidewalk to create a smoother sidewalk, for example. Board member Cheng asked if the argument about the tree fitting into an ecosystem was an argument that Mr. Norton could use for any tree within the City. Mr. Norton said we do not want a large portion of the City to go without some sort of tree coverage, especially when we are talking about bird habitat. He said there is a limited canopy in this area and being that the tree is healthy the Department thinks it is worth preserving and protecting it. The appellant, Kyle Shanks, President of Torras Leasing Co., gave his presentation and took questions from the Board members. Mr. Shanks said Torras Leasing Company owns most of the industrial section of the City where the tree is located. About ten years ago, the lot was in poor condition with very few tenants and little economic activity. Mr. Shanks said because of management’s hard work to revitalize the area, there are now 20+ small businesses operating and millions of dollars flowing into the Monterey economy. He said Torras Leasing Company considers themselves good neighbors and responsible property owners and that is what led to the decision to seek removal of the tree. Mr. Shanks said there are three risks that they are concerned about. The first is total failure of the tree, which was addressed by the City Forester; second there is a tripping hazard caused by the tree roots lifting the sidewalk, which they do not feel was sufficiently addressed by the Forester. And lastly is the risk of damage to the water meter and water utility service line, which was not addressed by the Forester either. Mr. Shanks said the uplifting of the sidewalk is a potential liability to the general public. He said in his view, the only way to eliminate that liability is to remove the tree. He added that in the Arborist Report the arborist recommended that the tree in question, which grows directly over a sewer and water main, be removed. 2 Appeals Hearing Board February 21, 2024 Minutes Mr. Shanks pointed to the Monterey City Code and the fact that the liability is on the property owner if someone was to trip and fall because of the sidewalk. Mr. Shanks showed pictures of other trees from around the property to indicate how Torras Leasing Co. takes responsibility for the upkeep and maintenance of the lot. Board member Glenzer asked City staff to address the water and sewer line issues. Mr. Norton said the roots are present, but they would not be addressed unless they became an issue. Mr. Norton said just the fact that they are present is not a reason to remove the tree. He said this is a very common occurrence and it is something that could be mitigated. Board member Glenzer asked Mr. Norton if he could give a history of these kinds of trees and sewer line intrusions. Mr. Norton said he was not sure he could give a level of prevalence, but it is an issue that the Department has dealt with in the past and he could not say that it would happen in this case for sure. Board member Glenzer asked who would be responsible should that happen here. City Attorney Christine Davi said if a tree root invades a sewer line it is usually because the line is defective, and the roots are drawn to the line as opposed to the roots damaging the line. She then told the Board as far as the City Code; the sidewalk issue is handled separately by the Public Works Department. A letter is sent to the property owners to repair the sidewalk, and they are given two weeks, but an extension can be granted if necessary. Ms. Davi said if the property owner does not take remedial action, then the City will repair it and lean the property. She said based on what she heard at the hearing, she will inform the Public Works Department that a separate issue with the sidewalk needs to be addressed but that is not pertinent to the hearing. Board member Cheng asked Mr. Norton if he considered the tree an aesthetically beautiful tree. Mr. Norton said he would consider the tree aesthetically beautiful but also stated he is biased since his background is in forestry. He said it is not just the aesthetics of the tree, but the biomass and the fact that it is part of an ecosystem. Board member Milich asked Mr. Norton if left as is, would the roots continue to grow and would the uplift on the sidewalk get worse? Mr. Norton said if left as is yes, but it would also depend on how the issue is handled. He said if the roots are ground down that is a temporary fix but if the concrete is pulled and the culprit roots are pruned then you’re buying more time. Board member Millich wanted to know who would be responsible for that process. Mr. Norton said that he would be the owner of the tree. Mr. Millich said if something happened then that individual would be liable for the damage. Ms. Salameh said according to the Sidewalk Ordinance, when a tree’s roots are impacting the sidewalk right-of-way, the City will notify the property owner to do the work and if they do not take action to correct the issue, then the City can address the problem, do the work, and lean the property. Daeg Bryne, CFO for Torras Leasing Co. said he works closely with Mr. Shanks on any liability issues. Mr. Bryne said when the Forester addressed the impact of the tree roots on the water line it was not mentioned that three years ago, they had to replace the main water line that goes into the property and serves the seven units. The line was damaged by the tree roots, so in his opinion, this is an ongoing issue that will continually need to be repaired or replaced. Mr. Byrne said the sewer line is offset from the tree by about three feet, unlike the water line which goes right under it. The gas line is only about four to five feet away from the tree as well and has caused concern. Mr. Bryne said the water line continues to be damaged by the tree roots and 3 Appeals Hearing Board February 21, 2024 Minutes unless they remove the tree to arrest the growth, all they can do is plan to replace the water line in the future when it becomes a problem. Board member Cheng asked if Torras Leasing Co. holds a general liability policy if someone did trip on the sidewalk. Mr. Bryne said they are well insured. Ms. Salameh said since new claims were made by the appellant, the department would like a chance to ask some questions and the Board members agreed. Ms. Salameh asked Mr. Bryne, what is the evidence that the water main continues to be damaged by the roots. Mr. Bryne said the evidence is when it failed in 2020, there was a major leak. Ms. Salameh asked if there had been any issues occurring since that time and Mr. Bryne said no there have not been any issues. Ms. Salameh asked Mr. Bryne if there have been any root intrusions since 2020; Mr. Bryne said no there have not. She said there has been no evidence of root intrusion into the gas or sewer lines either, to which Mr. Bryne said no there has not been. Ms. Salameh asked Mr. Bryne, to date, have you taken any action to grind down the roots under the sidewalk or otherwise prune the roots that have caused the uplift? Mr. Bryne said the center of the tree is very close to the sidewalk and any efforts to remove the roots to the degree that would address the liability of the sidewalk lift would likely damage the tree so we would pursue that option if we thought it was viable. Ms. Salameh asked Mr. Bryne if he was a Certified Arborist, which he said he is not. Public Comments None. Board Member Discussion Board member Glenzer thanked Mr. Shanks and Mr. Bryne for their presentation and for displaying good corporate citizenship. He said the tree is stunningly beautiful, and he is inclined to agree with Mr. Norton about the tree being part of an ecosystem despite the area being an industrial area. He said there are mitigation measures that are immediately possible to reduce the major liability. Mr. Glenzer said there is a difference of opinion about what can be done with the roots but when having to make a decision about the tree, he said he would have to side with someone who is qualified on this topic, such as Mr. Norton. He said you can deal with the roots, the sidewalk and the limbs and all of the future potential issues with the water, sewer, and gas and that can be monitored over the years. Mr. Glenzer stated again that he thinks it is a beautiful tree and should be preserved. Board member Millich said the burden of proof is on the appellant. Although it was a close call, Mr. Millich said he does not think the appellant has met the burden of proof and he would tend to agree with Board member Glenzer. Board member Cheng told the appellant that if the decision did not go their way they could appeal to the Superior Court or talk to the City Council about changing the City Code regarding trees. Board member Glenzer made a motion to deny the appeal. Board member Millich seconded the motion. 4  Appeals Hearing Board February 21, 2024 Minutes The motion was carried by the following vote, which was conducted by roll call: AYES: 3 COMMISSIONERS: Millich, Glenzer and Cheng NOES: 0 COMMISSIONERS: None ABSENT: 0 COMMISSIONERS: None ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. ADJOURNMENT Vice Chair Millich adjourned the hearing at 10:52 am Respectfully Submitted, Approved, Alicia Salas Kent Glenzer Recording Secretary Chair of the Board 5