HomeMy WebLinkAboutTC Res 2010-04-21RESOLUTION NO. 19-2010
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
DENYING AN APPEAL BY VICTORIA TUORTO
OF THE DESIGN REVIEW BOARD'S APPROVAL OF A TREE PERMIT FOR
PROPERTY LOCATED AT 100 NEWS WAY (HILARITA APARTMENTS) AND
MODIFYING CONDITIONS OF APPROVAL
(ASSESSOR PARCEL NO. 058-151-39)
WHEREAS, on March 4, 2010, the Design Review Board conditionally
approved a tree permit application (File #T-2009-31) filed by the Hilarita Tiburon
Ecumenical Association (HTEA) requesting the removal of six blue gum (eucalyptus
globulus) trees at 100 Ned's Way (Hilarita Apartments); and
WHEREAS, the conditional approval was appealed in a timely manner by
Victoria Tuorto; and
WHEREAS, the Town Council held a public meeting on April 7, 2010, and
after receiving testimony and reviewing all evidence in the record, indicated its intent to
deny the appeal and directed staff to prepare an appropriate resolution reflecting the
Town Council's intentions and return it for adoption at a future meeting; and
WHEREAS, the Town Council makes the following findings with respect to
the grounds for the appeal as set forth in the appeal form:
1) The appeal asserts that the project does not fit the CEQA exemption
category and needs an Environmental Impact Report. The Town Council concurs
with the Design Review Board's finding that an exemption from CEQA under
Section 15304 of the CEQA Guidelines is appropriate and that an environmental
impact report is not required. The Town has processed more than 450 tree
permits over the past 18 years and never encountered an instance where an EIR
has been required. The CEQA exemption utilized for nearly all tree permit
applications is broad and applies to such applications unless the trees proposed for
removal are healthy, mature and scenic. The Town Council finds that the subject
trees, while obviously mature and apparently healthy, do not meet the scenic
criterion. The Council finds that trees of this exotic species are not considered
scenic unless their broad community significance (such as the "Hippie Tree" off
Rock Hill Road, or the extensive eucalyptus groves of the Vista Tiburon and
Cypress Hollow subdivisions) rises to a level of scenic significance that renders
this CEQA exemption inapplicable. These trees are not sufficiently prominent to
meet this standard. Four of the trees proposed for removal have very little foliage,
virtually all of which is located at the highest portion of the trees, while the
remainder of the trees is largely bare trunk. The Town Council finds that the
screening and scenic value associated with the subject row of trees predominantly
resides with the eucalyptus compactus trees that will remain and are not proposed
Town Council Resolution No. 19-2010 04/21/2010 Page 1 of 5
for removal. The Town Council further finds that the eucalyptus globulus trees
are not a resource of hazardous or critical concern, as defined by the CEQA
Guidelines, and are not located in a particularly sensitive environment but are
roadside trees in an environmentally disturbed and non-pristine area surrounded
by a paved parking lot and a state highway and its adjacent concrete drainage
swale.
2) The appeal also asserts that use of the exemption impermissibly piece-
meals the project. The Town Council finds that the record and the approval itself
make clear that only the six trees that are subject of the application are authorized
for removal by this permit. HTEA representatives have repeatedly written and
stated that there are no plans to remove living eucalyptus compactus trees in the
row in the foreseeable future; only to periodically trim them.
3) The appeal also asserts that a fair argument can be made that the removal
will have a significant effect on sensitive receptors, including aesthetic, dust,
exhaust fumes, relief from sun and heat, and noise impacts. No evidence has been
presented to support a reasonable argument that removal of the trees would result
in significant aesthetic, noise, dust, exhaust or sun/heat impacts. While the staff
report concluded that a few of these characteristics would come into play, there
was no evidence presented that the impacts would have the potential to rise to a
significant level and the CEQA exemption is therefore appropriate. A dense row
of eucalyptus compactus trees will remain, as well as new replacement trees on a
basis of three new trees for each removed tree.
4) The appeal asserts that recommended replacements will not take root
because of the extensive root system from the eucalyptus trees. The Town
Council finds that there has been no substantial evidence presented to support this
contention. On the contrary, material submitted by the appellant, set forth in
appeal attachment 8, which was authored by a recognized tree expert in Marin
County, indicates that eucalyptus globulus trees are "a shallow-rooted species".
Furthermore, the Tree Replacement Plan, prepared by a licensed landscape
architect, D. J. Johns, depicts and describes the necessary soil amendment and
planting preparation. Mr. Johns stated (March 4 minutes, p. 3) that the
replacement trees were "chosen based on how well they would grow in the area
given the constraints". He also noted that unsuccessful trees would be replaced.
Mr. Johns subsequently submitted a letter set forth as Exhibit G to the April 7,
2010 Town Council staff report, refuting the assertion that replacement trees
would be unsuccessful due to roots from eucalyptus trees. The Town Council
notes that a row of thirty (30) eucalyptus trees was removed along Tiburon
Boulevard in front of the nearby Reed Elementary School approximately 10 years
ago, and that the replacement trees appear to be growing successfully. The Town
Council finds that the Replacement Plan (Landscape Plan) appears to depict
adequate soil preparation and irrigation, and that the licensed landscape architect
who prepared the plan selected replacement tree species with a history of success
in such an environment as is posed by this location. The Town Council also notes
Town Council Resolution No. 19-2010 04/21/2010 Page 2 of 5
that Boardmember Kricensky stated that he spoke to an arborist about the project,
and the arborist indicated that with proper soil replacement and maintenance after
planting, the new trees would do quite well (March 4 minutes, p. 4). The Town
Council finds that the evidence in the record does not support the assertion made
in the appeal.
5) The appeal states that the Hilarita is a HUD housing project and that one
of the primary purposes of HUD is to defend the rights of protected classes, and
further asserts that all of the handicapped apartments and many senior and
disabled persons are located and live behind these trees. The appeal asserts that
removal of the trees would therefore have a detrimental impact on the quality of
life of these persons. The Town Council finds that no evidence or authority has
been provided to support the contention that HUD regulations would regulate tree
removal or landscape replacement at facilities to which HUD provides financial
aid, or that the tree removal would constitute some form of discrimination against
a protected class of persons. The Town Council notes that the April 1, 2010 letter
from HUD appears to refute the contention of the appeal with respect to the
landscaping.
6) The appeal asserts that the proposed tree replacements are much smaller,
even at full maturity (which would take years to be achieved), and will therefore
offer inadequate screening for the buildings and their occupants. The Town
Council finds that the Design Review Board was fully aware that the replacement
trees would not grow to the same height as the eucalyptus globulus proposed for
removal. The Board preferred that the tallest of the proposed replacement trees
achieve at maturity roughly the same height as the existing eucalyptus compactus
trees that would remain in the row after removal of the eucalyptus globulus trees.
The Board concluded that the amount of screening offered by the trees proposed
for removal was minimal, especially at the lower areas where it was most needed,
and concluded that a combination of taller and shorter replacement trees was
appropriate and would be adequate. The Town Council agrees with these findings
and conclusions of the Board. As noted above, four of the trees proposed for
removal have very little foliage, virtually all of which is located at the highest
portion of the trees, while the remainder of the trees is largely bare trunk. The
Town Council finds that the preponderance of screening and scenic value
associated with the subject row of trees resides with the eucalyptus compactus
trees that will remain and are not proposed for removal.
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town
of Tiburon hereby denies the appeal of Victoria Tuorto.
BE IT FURTHER RESOLVED that the Town Council hereby modifies
original Condition Nos. 5 and 8 of Design Review Board Resolution No. 2010-01 to read
as follows:
5. Tree removal is contingent upon confirmation acceptable to the Director of
Community Development that all work performed will be located on Hilarita
Town Council Resolution No. 19-2010 04/21/2010 Page 3 of 5
property and/or that all required Caltrans permits to perform work associated
with this permit have been secured.
8. Due to bird nesting concerns, tree removal shall not commence prior to
October 1, 2010. This permit shall be valid for 240 days following final
approval. A time extension may be granted for good cause by the Director of
Community Development.
BE IT FURTHER RESOLVED that the final conditions of approval for the
permit are attached as Exhibit "A" hereto.
PASSED AND ADOPTED at a regular meeting of the Town Council on April
219 2010, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS :
Fraser, Fredericks, and O'Donnell
Collins
S lavitz
RICHARD COLLINS, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE TiFOPI, TOWN CLERK
Town Council Resolution No. 19-2010 04/21/2010 Page 4 of 5
EXHIBIT "A"
CONDITIONS OF APPROVAL
FILE # T-2009-31
100 NED'S WAY
TREE REMOVAL PERMIT
1. Tree removal, soil preparation, and replanting shall be performed in accordance
with the Landscape Plan (2 sheets) and Landscape Plan Narrative (2 pages),
prepared by Zone 17 Landscape Architecture dated February 26, 2010, as
modified by this Resolution.
2. The size specification for Future Primary Replacement Trees shall be changed
from "minimum 15 gallon" to "minimum 24 inch box" on the Landscape Plan.
3. Town staff shall be contacted three working days prior to the commencement of
work and advised of the starting date.
4. Replanting work shall be completed within 45 days of tree removal.
5. Tree removal is contingent upon confirmation acceptable to the Director of
Community Development that all work performed will be located on Hilarita
property and/or that all required Caltrans permits to perform work associated
with this permit have been secured.
6. In reviewing future applications for tree permits associated with this row of trees,
Staff shall evaluate the success of earlier replacement trees, including provision
of screening and quality of tree maintenance.
7. A copy of the Town-provided Tree Permit Certificate must be posted on the site
in a conspicuous place at all times during performance of work authorized by the
permit. No work shall commence until the 10-day appeal period has expired
without an appeal filed.
8. Due to bird nesting concerns, tree removal shall not commence prior to October
15 2010. This permit shall be valid for 240 days following final approval. A time
extension may be granted for good cause by the Director of Community
Development.
END
Town Council Resolution No. 19-2010 04/21/2010 Page 5 of 5