Removing Trees from Your Backyard

There is a new law effective February 16, 2006 that could greatly affect your ability to remove trees in your own backyard, whether for new development on your lot or to increase your view. This new law creates 2 classes of trees: (1) significant; and (2) landmark. It is the first time the City has regulated the demolition of trees on private property.

A "significant" tree is automatically subject to the new law. A tree on private property is “significant” if any portion of its trunk is within 10 feet of the public right of way and if one of the following three things are true: (1) the tree has a diameter at breast height of over 1 foot (“breast height” means 4.5 feet above the ground); (2) is over 20 feet tall; or (3) has a canopy in excess of 15 feet. The “public right of way” means the street area where cars travel. Thus, a tree with a trunk within 10 feet of the sidewalk but not within 10 feet of the street would not be subject to this ordinance.

If a tree is a "significant" tree, then it cannot be removed without obtaining a tree removal permit from the Department of Public Works. As part of the Director’s determination to authorize removal of a significant tree, the Director will consider the following factors related to the tree:

  • size, age, and species
  • visual and aesthetic characteristics, including the tree’s form and whether it is a prominent landscape feature or part of a streetscape
  • cultural or historic characteristics, including whether the tree has significant ethnic appreciation or historical association or whether the tree was part of a historic planting program that defines neighborhood character
  • ecological characteristics, including whether the tree provides important wildlife habitat, is part of a group of interdependent trees, provides erosion control, or acts as a wind or sound barrier
  • locational characteristics, including whether the tree is in a high traffic area or a low tree density area, or provides shade or other public benefits
  • whether the tree constitutes a “hazard tree”; and
  • whether the tree has been maintained properly, based on certain stated maintenance criteria.

There are requirements that neighbors be noticed of the pending tree removal. If anyone objects to the tree removal, then a hearing by Public Works is held. An appeal can be made to the Board of Supervisors. If the Department grants a tree removal permit, it must require that another street tree be planted in its place or impose a fee, unless it has good reason to waive these requirements.

If your tree is not “significant”, it could be a “landmark” tree.

Unlike significant trees, a “landmark” tree is not specifically defined in the Ordinance. While the Ordinance identifies the "criteria" to be used by the City’s Urban Forestry Council in reviewing permits for removal of landmark trees (such as size, age, species), the task of coming up with specific guidelines for what is a “landmark” tree has yet to be done by the Urban Forestry Council. And even when the specific criteria are known, becoming a “landmark” tree is a long process. To become a landmark tree, a tree has to be: (1) nominated by the property owner or neighbor, the Board of Supervisors, Planning Commission, Landmarks Board or the Planning or Public Works director; (2) considered at an Urban Forestry Council hearing; and, (3) approved by the Board of Supervisors. A tree anywhere on a lot could be made a landmark tree, even if not viewable by the public easily.

A mere nomination for landmark tree status will thereafter require the tree to be treated temporarily as a landmark tree. The Director of DPW also can issue an emergency order that temporarily designates a tree on private property to prevent the immediate removal of a tree. The temporary status will expire in 180 days if landmark designation has not occurred by then, unless the Board of Supervisors adopts a resolution to extend for up to 90 more days. The Zoning Administrator is required to identify designated landmark tree on proposed development or construction sites and to notify other city agencies regarding this.

A landmark tree can be removed, but only after a public hearing is held by the Director of Public Works. Like significant trees, the Department can require true replacement or payment of a fee to the Adopt-A-Tree Fund.

In summary, while a tree is automatically found to be “significant” if certain criteria are met, a tree cannot be deemed a “landmark” until a number of City agencies make a decision based on criteria that have yet to be adopted. The key thing to remember about what this new law does is that even if your trees are found to be significant or landmark trees, they can be removed, but removal would require a hearing by the Department of Public Works and is now much more difficult. Even if DPW gives you the right to cut a tree, neighbors who oppose this can go to the Board of Supervisors. And if you get to remove the tree, you could be required to pay the City a fee.

If a tree is designated a “hazardous tree” by the City, it is easier to remove. OR, in the case of “manifest danger and immediate necessity”, the City can require immediate removal by a property owner. A “hazardous” tree is a tree (or any part of it) that (1) appears dead, dangerous, or likely to fall (even after proper maintenance activities are performed to eliminate dead or dangerous parts), (2) obstructs or damages a street or sidewalk or other existing structure, (3) harbors a serious disease or infestation threatening the health of other trees, (4) interferes with vehicular or pedestrian traffic or (5) poses any other significant hazard or potential hazard; provided that reasonable measures have been taken to abate such a hazard, such as certain listed maintenance activities.

M. Brett Gladstone
www.gladstoneassociates.com