San Francisco developers have become accustomed to the potential for post-approval delays caused by appeals of a project’s entitlement or CEQA determination. But recently, a new avenue for project opposition has sprouted up from a less expected source…the urban forest.
In 2006, the City enacted an Urban Forestry Ordinance (Public Works Code, Article 16). The Ordinance aims to protect San Francisco’s approximately 670,000 trees, a.k.a the Urban Forest. One of the ways this is accomplished is by requiring property owners to obtain a permit from the Department of Public Works (“DPW”) before removing both street trees located in the public right of way, and also any trees on private property that meet the Code’s definition of a “significant.”
Despite what this weighty appellation suggests, a tree does not need to have any special aesthetic, cultural or historical significance to qualify as “significant.” Instead, that term covers any tree on private property within 10 feet of a public right of way that has at least one of the following: (a) a diameter at breast height exceeding 12 inches; (b)a height exceeding twenty feet; or (c) a canopy in excess of fifteen (15) feet. If these criteria are met, a permit is required for the tree’s removal, whether it is alive, dead, or hazardous.
If a permit is required, a public process is triggered. First, a removal application must be filled out and submitted to DPW. In response, a DPW inspector will inspect the tree and issue a determination of whether removal is merited. This is based on weighing a number of Code criteria, including the tree’s: (a) size, age and species; (b) visual and aesthetic quality; (c) cultural or historic significance; (d) ecological characteristics; (e) locational characteristics, such as whether it is in a high-traffic or low tree density area; (f) whether it is a hazardous tree; and (g) whether it has been properly maintained.
If DPW recommends removal, notice is posted on the tree for 30 days. If objections to the tree’s removal are received, DPW will schedule a public hearing on the matter. Likewise, if DPW recommends denial of the removal application, the applicant can request a public hearing. In either event, DPW’s final decision can then be appealable to the Board of Appeals for 15 days.
This process can raise concerns for developers, because an inability to remove existing trees on private property could necessitate a major project redesign and significantly limit the developable area of a site.
There is also the potential for savvy opponents to use of the tree removal process as a tool for opposing or delaying a project’s initial entitlement. In the past, the Planning Department has typically held off on requiring developers to obtain tree removal permits until after a project’s Planning Commission approval. However, the Department’s recent requirement that the developers of a residential project obtain a tree removal permit before entitlement approval led to an unexpected branch of opposition.
At the Department’s request, the developers sought and obtained a permit to remove two “significant” Eucalyptus trees on the property. However, before the Planning Commission hearing approve the project’s Section 329 Authorization, a small group of neighbors appealed the tree removal permit to the Board of Appeals. These opponents used the tree issue as a basis for opposing the project’s proposed design, arguing that because the trees were located in the typical rear yard area and were regarded as a public amenity, a major project re-design should be required to accommodate their retention.
The timing of this appeal was concerning, as the project’s design had not yet received Planning Commission approval, rendering it more vulnerable to proposed modifications. After significant discussion and consideration of detailed accounts from certified arborists on both sides (and multiple hearings), the Board ultimately upheld the removal permit, but did propose to condition its decision on the project’s receipt of final entitlement approval. Key factors in the Board’s final decision were the general condition of the trees, coupled with the fact that their retention was anticipated to result in a 16% reduction in the project’s overall residential density.
For more information on the Urban Forestry Ordinance and tree removal permit requirements, visit: http://sfdpw.org/index.aspx?page=656.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.