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Home My WebLink AboutSS2 - Tree Ordinance EnforcementCITY OF NEWPORT BEACH November 14, 2000 CITY ATTORNEY'S OFFICE Study Session Item No. ss2 Cagy (P0 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Daniel K. Ohl, Deputy City Attorney RE: TREE ORDINANCE ENFORCEMENT This memo is in response to a City Council request for information about our current procedures and enforcement options when we receive information that a City street tree was illegally removed. BACKGROUND: The City has an urban forest consisting of approximately thirty thousand trees. Street trees originate from different sources including the City, the developer (pursuant to Chapter 13.08), homeowner's association or the adjacent property owner. The General Services Department has, during the last nine years, conducted a detailed inventory that is used to determine if the City owns a particular tree. In our opinion, the City is the owner of any tree on City property or in a City right of way, but there is no definitive legal precedent to that effect. The City Council has adopted comprehensive policies governing street tree removal/ reforestation (Council Policy G -1) and the planting and maintenance of "parkway trees' (Council Policy and G-6). CURRENT PRACTICE: Currently, we notify the Police Department when we receive information that a City tree may have been illegally removed. The Police Department prepares an incident report, photographs are frequently obtained and a valuation statement is provided based on an industry wide standard, which uses age, size, condition and species of tree to calculate value. This office then schedules a meeting with the responsible party — usually the adjacent homeowner. Since the courts have not accepted our valuation standard, we have recovered the amount the court has previously identified as what we are entitled to: what it will cost to replant a tree at the location where the removal took place. The settlements were made with the concurrence of the General Services Department. The General Services Department has prepared a list concerning illegal removals, which is attached. I Study Session: Tree Ordinance Enforcement November 14, 2000 Page: 2 ENFORCEMENT OPTIONS: 1. Criminal Enforcement: One option is to take the report prepared by the Police Department and ask that the District Attorney's Office to file criminal charges. Potential criminal charges include vandalism (Section 594 PC) which requires "an intent to do a wrongful act' and Section 13.08.040 NBMC which prohibits the removal of City trees on City property. There have not been any request to date for the District Attorney's Office to file charges as we have resolved the matters civilly. It is not anticipated that the District Attomey's Office or the court would be receptive to these types. of matters except in the most egregious cases, i.e., where a large number of trees have been cut, the individual clearly knew or should have know that a City tree was involved, or where an individual has cut down a City tree after permission to do so has been denied. The District Attomey's Office would most likely resolve the matter short of trial with a fine, if they elected to pursue the cases at all. Another option would be to retain a prosecutor on behalf of the City to pursue these matters. It would run approximately $150 an hour to retain such and the cost may exceed the value of the tree illegally removed. 2. Civil Enforcement: We can continue to pursue civil resolutions with voluntary reimbursement. In the event that we are unsuccessful in obtaining an acceptable level of reimbursement, we can pursue a civil matter in small claims or municipal court. Pursuant to the Civil Code, we are entitled to twice the damages caused where the individual thought the tree was on his own property and three times the actual damages where the individual actions were determined to be "reckless' or "intentional ". In the instances where we have pursued civil litigation, the courts have not been receptive to these cases. In order to avoid their reluctance, we could attempt to resolve them by a summary procedure by bringing a motion to establish our entitlement to damages and in the amount requested. 3. Education of the Public: We can develop some press releases in the local papers conceming the value the City places on trees, our recognition as a leader in urban forestry and our prohibition on removing City trees. We could also indicate our pursuit of those who remove City trees without permission. i Study Session: Tree Ordinance Enforcement November 14, 2000 Page: 3 DEPARTMENT COORDINATION: The Building Department and the General Services Department have recently begun a cooperative program where redevelopment plans are submitted to the Urban Forester to see if any related City trees are potentially effected by the proposed redevelopment. This review has reduced conflict between the Building Department and the developers as well as reducing the possibility of illegal tree removals. The review also determines whether additional trees are required as part of the development consistent with Section 13.09. RECOMMENDATIONS: 1. Continue to pursue voluntary reimbursement through the meet and confer process. We would solicit Council direction on minimal levels of reimbursement to be accepted. 2. Pursue civil litigation in small claims or municipal court in those instances where we cannot obtain the directed level of reimbursement set by Council. 3. Pursue criminal filings in situations where a large number of trees were removed, trees were removed after permission has been denied, where the value of the tree(s) exceeds a level determined by Council, or where the property owner clearly knew or should have known a City tree was removed. 4. Continue and encourage interdepartmental efforts to coordinate activities and reduce the chance for the removal of City trees while making sure required additions are planted when required by City Ordinance. 5. Pursue education of the public on the importance of City trees and the City's commitment to continued enforcement activities in cases of illegal removals. Darnel K. Ohl Deputy City Attorney F.6 , Attachment f.WserskatNshared\c emo*ftordenfss111400 .doe ILLEGAL TREE REMOVALS (Illegal tree removals over the last six years and actions taken) ADDRESS STAFF ACTION/ TREE VALUE CITY ATTORNEY/PBRACTION 2515 Lighthouse Lane Requested $1,074.48 collected $1,074.48 2516 Holly Lane Requested $4,676.98 pending City Attorney action 1999 r . . . . . . . . . . ...... 2500 Ocean Blvd Requested $16,000-00 collected $5,000-00 221 Milford Lane Requested $750.00 collected $250.00 1998 = 7 321 Snug Harbor Road 735 Cameo Highlands Requested $1,313.00 Requested $2,127.00 collected $500-00 collected $1,200.00 1217 E. Balboa Blvd Requested $1,300-00 collected $585-00 7 1737 Antigua Way Requested $9,394.00 collected $1,170.00 2406 Windward Lane Requested $1,809-00 collected $585.00 ... ........ i996. 1706 Port Sterling Requested $390.00 collected $195-00 1995 ." :7-7 1830 Port Tiffin Place Requested $1,954.00 collected $1,000.00 519 Fernleaf Ave Requested $1,000.00 collected $1,000.00 3807 Inlet Isle Requested $3396.00 collected $195.00 Total Pending 1 Total Requested $42,184-46 Total Collected $12,754-48 Prepared by General Services Departlnent October 2, 2000 I I