Chapter 2 TREE MAINTENANCE AND PROTECTION*

The City recognizes substantial economic, environmental and aesthetic importance of the trees and plantings within the community. It shall be the City’s policy to utilize applicable techniques, methods and procedures required to preserve, when feasible, all trees and plantings on City property, and all protected plantings of significant size, age, and/or benefit to the community at large.

This chapter is part of a comprehensive plan developed in the best interest of the Milpitas community to regulate the planting and maintenance of trees and Other Plantings in or adjacent to streets and within easements, in rights-of-way and other public places within the City and where appropriate, private property, to provide for orderly development and protection of public facilities, and to regulate the removal of trees that contribute significantly to the value of land, preservation of resources, and quality of life in the City of Milpitas. (Ord. 201.5 (1) (part), 10/16/07)

“Approved Street Tree” shall mean any tree hereafter planted within any street right-of-way or easement adjacent thereto which conforms to the Approved Street Tree List and which is planted in accordance with this Chapter. “Approved Street Tree” shall also mean any existing tree within the right-of-way or easement adjacent thereto which conforms to the established species and location in any given area, and which was planted as a required street tree under the provisions of any improvement agreement, or as otherwise approved by the Public Works Director, or any tree of the approved species and in an acceptable location which was or may be planted as a replacement. (Ord. 201.5 (1) (part), 10/16/07)

“Approved Street Tree List” is a list that shall be maintained by the Public Works Department containing the botanical and common names of all trees authorized to be planted in the public right-of-way or tree planting easements. The list may be revised to include other suitable trees, trees to be planted for evaluation purposes, or to exclude trees deemed to be unsuitable. (Ord. 201.5 (1) (part), 10/16/07)

“Heritage Tree Program” shall mean a program established in accordance with the provisions of this Chapter to recognize and designate individual trees or groves of trees to promote appreciation of the trees and their benefit to the community, and to nurture and protect the trees as part of the City’s heritage. (Ord. 201.5 (1) (part), 10/16/07)

“Maintenance” shall mean planting, pruning, staking, cabeling, treating for pests and disease, removing, or any other act that nurtures the street tree population, sustains tree life and health, and promotes public safety. (Ord. 201.5 (1) (part), 10/16/07)

“Owner/Occupant” shall mean any person owning property, as shown on the last equalized assessment roll for City taxes, or the lessee tenant, or other person having control or possession of the property. (Ord. 201.5 (1) (part), 10/16/07)

“Tree Pruning” shall refer to the removal of diseased, dead, dying, decayed, interfering or obstructing branches, or the training of young trees to control growth and enhance performance or function in the landscape, and by developing and preserving tree structure, health and stability. No more than 25% of the tree canopy should be removed within a growing season. (Ord. 201.5 (1) (part), 10/16/07)

“Street Tree Planting” shall mean the planting of City street trees within the public right-of-way, in parks and in easements dedicated to tree planting. Street trees shall be planted in residential neighborhoods within tree planting easements in suitable vacant planting sites, which avoid conflicts with underground utilities and hardscapes. (Ord. 201.5 (1) (part), 10/16/07)

“Tree Removal” means either 1) complete removal, such as cutting a tree to the ground; or 2) taking any action that would lead to the death of a tree or cause permanent damage that may compromise tree health and stability. Tree removal may include, but shall not be limited to, severe pruning or topping, girdling, poisoning, over watering, under watering, trenching, excavating, or altering the soil grade around the tree trunk. (Ord. 201.5 (1) (part), 10/16/07)

“Tree Topping” is the removal of large branches to a stub, or smaller lateral not large enough to assume a terminal role. Tree topping is not an approved tree pruning practice for City street trees or protected trees, and is considered tree removal under this Chapter. (Ord. 201.5 (1) (part), 10/16/07)

The Public Works Director shall be responsible for administering and enforcing the provisions of this Chapter. He or she shall undertake maintenance and planting programs and controls as may be required to carry out the provisions of this Chapter consistent with facilities and resources available. He or she may designate certain representatives to administer any portion of this Chapter. (Ord. 201.5 (1) (part), 10/16/07)

The Public Works Department shall prepare an “Approved Street Tree List” containing the botanical and common names of all trees authorized to be planted in the public right-of-way or tree planting easements adjacent thereto. The Public Works Department shall make the list available to the public, and revise the list to include other suitable trees, trees to be planted for evaluation purposes only, or to exclude trees deemed to be unsuitable. All trees hereafter planted in any street or easement adjacent thereto or which may encroach upon such street right-of-way shall conform to the Approved Street Tree List, except as may be specifically approved under Subsection 4.01-1. (Ord. 201.5 (1) (part), 10/16/07)

It shall be unlawful for any person to plant or cause to be planted any tree in any public right-of-way without first obtaining a written permit from the Public Works Department, except as provided in Subsection 4.01-1. Said permit shall specify the location and variety of trees or plants to be planted.

Street trees or Other Plantings that are required to be planted by a subdivider or developer in accordance with plans and specifications approved by the City, may be planted without a permit, provided, however, that such trees and plantings shall conform to City approved plans and specifications and shall be planted under the supervision of the Public Works Department. (Ord. 201.5 (1) (part), 10/16/07)

It shall be unlawful for any person other than City personnel in the performance of their duties to remove any street tree, protected tree or heritage planting without first applying for a permit issued by the Public Works Department. The Public Works Department may determine that a tree authorized for removal be replaced by the permittee through the compensation methods described in Section X-2-9.01, subsections (a), (b) or (c). (Ord. 201.5 (1) (part), 10/16/07)

It shall be unlawful for any person, other than City personnel, to trim any Approved Street Tree without first obtaining a permit from the Public Works Department. The permit shall be issued when the Public Works Department finds that pruning is necessary and that the proposed method is satisfactory. A permit is not required for removing sucker growth, watersprouts, low hanging branches less than 4" in diameter causing obstructions, or for the removal of less than ten percent (10%) of the tree canopy. (Ord. 201.5 (1) (part), 10/16/07)

Consistent with the availability of resources, the Public Works Department shall initiate and administer a program to provide for the planting, maintenance, care, removal, and replacement of Approved Street Trees. Except for an emergency, which shall be an imminent threat of injury to persons or property, a tree protected by this Chapter may not be removed without the review and approval of the Public Works Director or his or her designee. (Ord. 201.5 (1) (part), 10/16/07)

The City will annually plant Approved Street Trees in suitable vacant planting sites in the public rights-of-way, and in tree planting easements. Trees with attributes most appropriate to their location and surroundings will be selected by the Public Works Director or his or her designee from the Approved Street Tree List. Trees planted in the public right-of-way and tree planting easements shall conform to the City street tree planting standard detail. The current resident, or if there is no current resident, then the owner shall be responsible for the adequate watering and protection of City street trees in tree planting easements. (Ord. 201.5 (1) (part), 10/16/07)

An appeal of Approved Street Tree planting in tree planting easements on residential property shall be made to the Public Works Director within two weeks of planting notification. Such appeal shall be in writing and signed by the resident or if none is available, the owner. (Ord. 201.5 (1) (part), 10/16/07)

The City may remove any Other Plantings that constitute a hazard or may endanger public health, safety or property, or which constitutes an obstruction to the vision of traffic. Said removal shall not be made, however, without prior notice to the property owner as provided for in Section X-2-8.02, unless the Public Works Department determines in his or her sole discretion that removing said tree or planting is immediately necessary for the protection of the public health, safety or property. (Ord. 201.5 (1) (part), 10/16/07)

The City is not responsible for maintaining Unapproved Street Trees or Other Plantings in or adjacent to or overhanging any street. Maintenance of such Other Plantings shall be the responsibility of the property owner, provided, however, the City may prune, trim, or remove such Other Plantings if the property owner refuses to maintain the plantings him or herself, in accordance with Section X-2-8.02. (Ord. 201.5 (1) (part), 10/16/07)

It shall be unlawful for any person to break, destroy, or mutilate any Approved Street Tree, tree stake, any public tree, shrub or plant in any public place including parks, or to set fire or permit any fire to cause damage to any portion of any street tree or other public planting; or to attach or place any rope or wire (other than one used to support a young or broken tree), sign, poster or other device on any street tree; or to permit or allow any gaseous, liquid or solid substance harmful to such tree to come in contact with any portion of any street tree; or to place or maintain any concrete or other solid substance or impervious membrane so as to impede free access of water or air to the roots. No solid paving or impervious membranes shall be placed closer than twenty-four inches (24") from the edge of any Approved Street Tree. Any Approved Street Tree or protected tree compromised in health and stability by abuse or mutilation shall be considered a tree removal, and compensation for removal may be sought under the provisions of this Chapter. (Ord. 201.5 (1) (part), 10/16/07)

Any person owning or occupying property adjacent to the public right-of-way shall be responsible for planting, maintenance and care of any plantings other than Approved Street Trees in those areas between the curb and right-of-way or easement. Maintenance of such areas shall include, but not limited to, weeding, pruning, spraying and watering.

Any person owning or occupying property adjacent to the public right-of-way shall be responsible for any hardscape placed between the curb and right-of-way or easement, including, but not limited to, brick, pavers and cement and the maintenance and care of any hardscape including, but not limited to, weeding, grinding and replacement. (Ord. 201.5 (1) (part), 10/16/07)

A property owner may plant various plantings, including, but not limited to, lawn, ivy, various perennials or annuals, and shrubs not to exceed two feet (2') in height that will not interfere with the functioning of any curb, gutter, sidewalk, water meter, fire hydrant, or other public facility, and will not interfere with or impair the growth of any Approved Street Tree, and will not constitute a public nuisance as described in Section X-2-8.02 of this Chapter, in planting strips and easements.

Trees protected in this Section are:

(a) All trees which have a fifty-six-inch (56") or greater circumference of any trunk measured 4 1/2 feet from the ground and located on developed residential property.

(b) All trees which have a thirty-seven-inch (37") or greater circumference of any trunk measured 4 1/2 feet from the ground and located on developed commercial or industrial property.

(c) All trees which have a thirty-seven-inch (37") or greater circumference of any trunk measured 4 1/2 feet from the ground, when removal relates to any transaction for which zoning approval or subdivision approval is required.

(d) Any tree existing at the time of a zoning or subdivision approval and was a specific subject of such approval or otherwise covered by subsection (b) above.

(e) All trees which have a thirty-seven-inch (37") or greater circumference of any trunk measured 4 1/2 feet from the ground and located on a vacant, undeveloped or underdeveloped property.

(f) All heritage trees or groves of trees as defined in Section X-2-2.10.

(a) Heritage tree designation may be applied by resolution of the City Council to individual trees or a grove of trees of any size or species within the City of Milpitas that are distinctive, of special historical value or significant community benefit.

(b) A tree or grove of trees may be designated as a heritage tree or heritage tree grove upon a finding that it is unique and of importance to the community due to any of the following factors:

1. It is an outstanding specimen or grove of a desirable species.

2. It is one of the largest or oldest trees or grove of trees in Milpitas.

3. The tree or grove of trees possesses distinctive form, size, age, location and/or historical significance.

(c) A heritage tree designation may be requested by any person with the written consent of the property owner.

(d) Heritage tree designation may be removed by resolution of the City Council by its own motion, or by recommendation from the Community Advisory Commission upon written request by any person. (Ord. 201.5 (1) (part), 10/16/07)

The Public Works Director shall be empowered to authorize pruning of any Approved Street Tree, Unapproved Street Tree, or other planting in the public right-of-way or easement without prior notice to the property owner, if the Public Works Director determines in his or her sole discretion that the Approved Street Tree, Unapproved Street Tree, or Other Plantings constitute an immediate danger to public health, safety or property. All pruning costs incurred shall be recovered in accordance with Section X-2-9.01 and Section X-2-10. (Ord. 201.5 (1) (part), 10/16/07)

Any Approved Street Tree, Unapproved Street Tree, or Other Plantings growing on public or private property that interferes with the use of or endangers any public sewer, sidewalk, Approved Street Tree, street or other facility or which impairs traffic visibility or which is maintained in violation of the provisions of this Chapter, may be declared a public nuisance. A City street tree or other tree protected under this Chapter that has been topped or mutilated may be declared a public nuisance by the Public Works Department and may be abated in accordance with the provisions of this Chapter.

All costs incurred to abate the public nuisance shall be recovered in accordance with X-2-9.01 and Section X-2-10. (Ord. 201.5 (1) (part), 10/16/07)

In pursuit of the City’s remedy for the unlawful removal or damage to any City street tree or heritage planting in violation of this Chapter, the City shall seek cost recovery through the following:

(a) Reimbursement to the City for the full costs of time and materials to prune, remove and/or replace trees within the public right-of-way or tree planting easements;

(b) Reimbursement to the City for the value of the removed or damaged tree as determined by an arborist certified by the International Society of Arboriculture utilizing the current edition of the “Guide for Plant Appraisal, International Society of Arboriculture”; or

(c) A combination of the above terms as determined by the Public Works Director. (Ord. 201.5 (1) (part), 10/16/07)

Whenever the Public Works Director determines that any property within the City is being maintained contrary to one or more of the provisions of this Chapter, he or she will give written notice (“Notice to Abate”) to the owner/occupant(s) (as defined in Section X-2-2.11) of said property stating the section(s) being violated. Such notice shall set forth a reasonable time limit, in no event less than or equal to thirty (30) calendar days, for correcting the violation(s) of Section X-2-8.02, not less than or equal to fifteen (15) calendar days, for correcting the violation(s) and may also set forth suggested methods of correcting the same unless the Public Works Director determines that the condition constitutes a threat to the health and safety of any person, in which event, the Public Works Director may designate a shorter time limit for correcting the violation. The notice shall inform the owner/occupant of City programs that provide fiscal assistance to very low and low income persons for the repair and rehabilitation of residential property. Such notice shall be served upon the owner/occupant in accordance with provisions of Section X-2-10.3. (Ord. 201.5 (1) (part), 10/16/07)

The notice shall also inform the owner/occupant, excluding an owner acting as landlord of rental property, that upon written request of the owner/occupant submitted within seven (7) calendar days of the “Notice to Abate,” the Public Works Director, in his or her sole discretion, may allow for a time limit in excess of thirty (30) days for correcting the violation in cases where strict enforcement of the time limit would result in an undue hardship on the owner/occupant. In the written request, the owner/occupant shall state the reasons why strict enforcement of the time limit would result in an undue hardship. (Ord. 201.5 (1) (part), 10/16/07)

In the event said owner/occupant shall fail, neglect or refuse to comply with the “Notice to Abate,” the Public Works Director shall conduct an administrative hearing to ascertain whether said violation constitutes a public nuisance. (Ord. 201.5 (1) (part), 10/16/07)

Notice of said administrative hearing shall be served upon the owner/occupant not less than seven (7) calendar days before the time fixed for hearing. Notice of the hearing shall be served in person or by certified mail to the owner/occupant’s last known address. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder.

Notice shall be substantially in the format set forth below:

This is a notice of hearing before the Public Works Director (or his/her designees) to ascertain whether certain property situated in the City of Milpitas, State of California, known and designated as (public right-of-way address) ___________________, in said City, and more particularly described as Assessor’s Parcel Number __________ constitutes a public nuisance subject to abatement pursuant to Chapter X-2 of the Milpitas Municipal Code. If said property, in whole or part, is found to constitute a public nuisance as defined in the Milpitas Municipal Code and if the same is not properly abated by the owner/occupant, such nuisance may be abated by municipal authorities, in which case the cost of such rehabilitation, repair, or abatement will be assessed upon such property and such costs, together with interest thereon, may constitute a special assessment or lien upon such property until paid. In addition, you may be cited for violation of the provisions of the Municipal Code and subject to an administrative fine.