Tuesday, September 09, 2008

APPEAL OF A FOREST & BEACH COMMISSION DECISION: Safety and Liability Concerns vs. Privacy Concerns

ABSTRACT: At today’s City Council meeting, an appeal of a unanimous decision by the Forest and Beach Commission approving the removal of a 30-inch diameter black acacia tree will be considered during Public Hearings. The appellant is Sue McCloud. RELEVANT INFORMATION is presented. COMMENTS are made, particularly with respect to fair minded individuals impartially reviewing the record having to conclude that safety and liability concerns of the owner far outweigh privacy concerns of the appellant.

Regular Meeting
Tuesday, September 9, 2008

VIII. Public Hearings
If you challenge the nature of the proposed action in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing.

B. Consideration of an appeal of a decision by the Forest and Beach Commission approving the removal of a 30-inch diameter black acacia at a property at 2922 Santa Lucia Avenue. The appellant is Sue McCloud, property owner of the home next door, on the east side.

In preparation for the Forest and Beach Commission meeting on April 3, 2008, applicant Susan Page hired certified arborist Frank Ono for a tree assessment. The assessment was limited to a visual assessment of her black acacia tree. Among Frank Ono’s findings and conclusions are the following:

The tree is a 33” diameter black acacia (Acacia melanoxylon), a non-native tree and invasive species.

Past pruning practices of heading or topping. Evidence that each major limb has been topped, an improper pruning practice, resulting in unstable tree branches. Branching structure poor. Poor and weak branch attachments.
“...the tree is in poor condition structurally due to past pruning practices.”
V-crotch branching from past improper pruning results in a hazard and potential liability for the owner.

Dieback evident in canopy

Acacia tree is “too large for its area.”

History of past tree failure

Recommendation: Removal and replacement of the tree with an appropriate species. Effective replacement plantings include four identified shrubs.

At the Forest and Beach Commission meeting on April 3, 2008, Sue McCloud’s sister, Sarah Berling, represented her sister who was not in attendance because she was concerned that “she not appear to be applying any undue pressure.” Sarah Berling stated that her sister wanted the acacia tree to be retained and pruned to “ensure that it remains healthy.” Her position to retain the acacia tree is based on privacy issues, namely privacy from Susan Page’s second floor which she claimed looks directly into Sue McCloud’s living, dining room and kitchen areas and screening from Susan Page’s flat roof and back deck from Sue McCloud’s upper deck and vice versa. In support of her position, a reproduction of a page from Design Traditions involving Privacy, Views, Light and Air was given to the City.

After deliberation, the Forest and Beach Commission unanimously approved (4-0) an application by Susan Page for the removal of a 30- inch diameter black acacia located on her property at 2922 Santa Lucia Avenue.

Meeting Date: September 9, 2008
Prepared by: Mike Branson
City Council Agenda Item Summary

Staff Recommendation: Uphold the decision of the Forest and Beach Commission.

Important Considerations: The acacia tree has been topped and heavily pruned for many years, resulting in multiple leaders with poor points of attachment to the main structural limbs of the tree. This type of pruning also frequently leads to decay of the limbs and an increased risk of limb or tree failure over time. Continued heavy pruning to limit growth and weight of the tree canopy can limit the stress on the limbs, but the risk of significant limb failure always remains due to past pruning practices. Staff recommended allowing removal of the tree and replanting with a 24-inch box fruitless olive tree.

In November 2000, when Carmelite Susan Page first applied for removal of her black acacia tree, Sue McCloud wrote she may be the “defacto owner or at least partial owner” of the acacia tree.

Given that the Forest and Beach Commission rendered its unanimous decision to approve removal of the black acacia tree on 3 April 2008 and Sue McCloud appealed the decision the day after their decision on 4 April 2008, the City was obligated to placed the appeal on the “next” City Council agenda, i.e. 6 May 2008, per the Municipal Code. While City Clerk Heidi Burch stated the attorney for Susan Page requested the appeal be pulled from the May 6, 2008 City Council Agenda, there is no correspondence from Susan Page’s attorney, Stephen Beals, in the Agenda Packet to corroborate or support the City’s assertion.

Upon reviewing all the facts in this case, all fair minded individuals would have to conclude that safety and liability concerns far outweigh privacy concerns, especially given the fact that shrubs could be planted in Sue McCloud’s side year by Sue McCloud herself for privacy and screening purposes. Ergo, all fair minded individuals reviewing the facts in this case in an impartial manner would vote to uphold the unanimous decision of the Forest and Beach Commission and finally allow the removal of a “dangerous” black acacia tree.

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