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HomeMy WebLinkAbout15 APPEAL OF DENIAL OF REQUEST FOR TREE REMOVAL COX MARKET PLAZAAgenda AGENDA REPORT Reviewed m 15 City Manager 05 Finance Director /A MEETING DATE: AUGUST 16, 2016 TO: JEFFREY C. PARKER, CITY MANAGER FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: APPEAL OF DENIAL OF REQUEST FOR TREE REMOVAL COX MARKET PLAZA APPELLANT: PHILIP K. COX COX'S MARKET PLAZA P.O. BOX 6069 BROOKINGS, OR 97415 LOCATION: 120 EAST MAIN STREET 140 EAST MAIN STREET 150 EAST MAIN STREET TUSTIN, CA 92780 SUMMARY/REQUEST Mr. Philip Cox ("Appellant") appeals from and requests reconsideration of the Director of Public Works' February 10, 2016 decision upholding the Field Services Manager's December 10, 2015 denial of a request to remove Ficus trees at 120, 140, and 150 East Main Street. The Field Services Manager's December 10, 2015 denial letter is included as Attachment "B". The Director of Public Works' letter upholding the denial of the request to remove the trees is included as Attachment "D". The Appellant's March 10, 2016 written appeal to that decision, is included as Attachment "E". RECOMMENDATION Pleasure of the Council: The City Council may uphold the decision of the Field Services Manager and Director of Public Works, order one or more of the trees to be removed, or remand the matter for further proceedings in accordance with directions of the City Council. (TCC § 7307) FISCAL IMPACT N/A Appeal of Denial of Request for Tree Removal — Cox Market Plaza August 16, 2016 Page 2 BACKGROUND/JURISDICTION Any decision of the Field Services Manager regarding a request for tree removal may be appealed to the Director of Public Works and ultimately to the City Council in accordance with Tustin City Code ("TCC") section 7307. DISCUSSION Pursuant to Tustin City Code section 7301, the City maintains and exercises full power, authority, and jurisdiction over all trees, plants, or shrubs in or growing upon or over any public parkway, street, highway, alley, right-of-way, and City -owned property in the City. The City's Manager of Field Services is authorized to remove trees which are determined to be blighted, diseased, or unsafe to the public. (TCC§7306(a)) However, the Tustin City Code makes clear that "a healthy tree specimen will not be removed unless it caused damage to adjacent property or is determined to be unsafe." (TCC §7306(b)) On October 26, 2015, the Appellant submitted a request for tree removal to the City for three Ficus trees located at 120, 140, and 150 East Main Street, Tustin, CA ("Property"). The Appellant's request stated that the Ficus trees caused damage and/or were unsafe. To support the request, the Appellant provided photographs of the property and video images from a camera Appellant's plumber lowered through the main sewer discharge lines at Cox's Market Plaza. The video images appear to show tree roots in the Appellant's sewer line. A copy of the request and corresponding photographs and video are included as Attachment "A". On December 10, 2015, the City's Field Services Manager denied the Appellant's request to remove the trees. The denial letter is included as Attachment "B." The denial informed the Appellant that the City of Tustin, as a multi-year recipient of the National Arbor Day Foundation's "Tree City USA" award is dedicated to preserving trees within the City to enhance the aesthetics of the community and promote general environmental quality of the City. The denial also stated that the Appellant had not submitted any evidence to show that the trees identified were unsafe in any manner. Finally, the denial stated that the video and photographs provided did not adequately show which, if any, of the trees had caused damage to Appellant's property. In accordance with the TCC, without clear evidence to show that a tree is causing damage, the City cannot remove the tree. On January 9, 2016, the Appellant appealed to the Director of Public Works and reasserted that the trees in question had caused damage to his sewer line. The Appellant also provided a 1987 article ranking trees according to their propensity to damage sewer pipes. The Appellant's response is included as Attachment "C". On February 10, 2016, the Director of Public Works issued a determination upholding the Field Services Manager's denial of the request for removal. The determination is included as Attachment "D." The Director of Public Works reiterated that the Appellant failed to provide sufficient evidence to demonstrate that any of the Ficus trees were unsafe or had caused damage. While the video does appear to show plant roots in the sewer lines, there is no way to prove the roots are connected to any tree in particular, where the images were captured, or that the roots found in the pipeline grew through and damaged the line. It is the property owner's responsibility to maintain his own sewer line, and the Appellant has failed to provide any evidence to demonstrate proper maintenance or even to show that any actual damage was caused only by roots and not by other Appeal of Denial of Request for Tree Removal — Cox Market Plaza August 16, 2016 Page 3 substances such as fats, oils, and/or grease. Hence, the mere "potential" harm posed by the proximate location of a tree and its root system is not justification for removal. In response, on March 10, 2016, the Appellant filed a written appeal from the Director of Public Works' determination to the City Council, which Appellant then supplemented with additional correspondence on June 3, 2016. This correspondence is included as Attachments "E" and "F" respectively. Additionally, while the appeal has been pending, the City has kept the Appellant informed as to the developing Tustin Commercial Core Plan ("TCCP"). While not yet finalized, the TCCP identifies a Main Street Improvement project that incorporates improvements to this specific area that will likely include removal of these specific trees for further beautification measures in association with a bicycle corridor. Despite this information and the likelihood that the City will soon act to make improvements to this immediate area, Appellant requested the appeal be placed on the City Council agenda at this time. Vc I s . Stack, P. E. t of Public Works/City Engineer Attachment(s): A. Cox Market Plaza request letter, dated October 26, 2015 B. Field Services Manager's December 10, 2015 Letter C. Cox Market Plaza Appeal Letter, dated January 9, 2016 D. Director of Public Works' February 10, 2016 Letter E. Cox Market Plaza Appeal Letter, dated March 10, 2016 F. Cox Market Plaza supplemental correspondence, dated June 3, 2016 ATTACHMENT A Cox Market Plaza Request Dated October 26, 2015 '�.COX'S MARKET PLAZA A Place of History for Unique Shops is Since 1936 s Old Town Tustin PHILIP K. COX — LINDA M. COX • POST OFFICE BOX 6069 • BROOKINGS, OR 97415 Phone • Cell 714 — 227-4610 • Fax 541 — 469-3815 • Home 541 — 469-5729 e-mail philindacox�charter.net RECEIVEDOctober 26, 2015 OCT 2 6 2015 Douglas S. Stack, Director of Public Works , City of Tustin 300 Centennial Way Tustin, CA 92780 Delivery — By Hand Re: SECOND REQUEST FOR REMOVAL OF FICUS TREES AT 120,140 AND 150 EAST MAIN STREET, TUSTIN, CALIFORNIA Dear Mr. Stack; Per your request, today, I had a plumbing contractor run a sewer camera through the main discharge lines at Cox's Market Plaza, a small, historical shopping center, at the SouthiEast Corner of El Camino Real and Main Street (435 El Camino Real) Tustin, California. Please find enclosed a USB thumb drive of the images inside the 4 and 6 inch sewer pipe which shows the Ficus root penetrations which correspond to the attached Exhibit A and Exhibit B. A plot plan drawing which also demonstrates the loca4 ons and the proximity of the offending Ficus trees (exhibit C). These locations are also marked on the concrete directly above each intrusion. Also attached is a work sheet printout of the expenses these trees have incurred over the past few weeks. Copies of invoices are included. This does not include countless hours that our handyman and Phil have spent attempting to preserve our property. This second request is necessary to prevent having to spend our entire maintenance fund on this continuing damage. We would like to continue our past practice of 45 years of helping keep Samuel Tustin's building in a clean and sanitary condition and to help preserve its historical significance. We believe that we have clearly dcmonstrated the facts that would allow us to be eligible to City Code 7306 — REMOVAL AND/OR REPLACEMENT. (b) Request from an adjacent property owner for the removal of a healthy tree specimen in the public right-of-way shall be evaluated by the Manager of Field Services or his designated representative. A healthy tree will not be removed unless it has caused damage to adjacent property or is determined to be unsafe (Ord. No. 589, Sec.2; Ord. No 1054, Sec. 1, 3-4-91). Please refer to the original request regarding damage to citrus trees, dated August 16, 2015 We reserve the right to appeal as provided in City Ordinance 7307 —RIGHT OF APPEAL. With out any legal duty to do so, Cox's Market Plaza is willing to cover the cost of the removal of these 3 Ficus trees by the City's Contractor. Please find enclosed our check #14732, dated October 26, 2015 in the amount of $1,680.00. If this is not the correct amount, please advise us and the correct amount will be submitted. We have based the cost amount on the following: The measurement of each tree at a location 3 feet above ground level, Diameter X $30.00 Per inch of Diameter: 120 East Main Street — 140 East Main Street — 150 East Main Street — 181/2" X $30.00 = $555.00 181/2" X $30.00 = $555.00 19" X $30.00 = $570.00 $1,680.00 In addition to this, we are committing to the funding of planting 3 replacement trees of the City's selection of property and sewer friendly species and to provided the funds necessary to cover all costs relating to the trees replacement up to the amount of $500.00 for each tree, p Thank you for your assisting our goal of keeping Cox's Market Plaza a show place in Old Town Tustin and attracting quality businesses that provide taxes to the City. But most importantly, for the preservation of History to the Visitors. Please forward your decision in writing to the addresses provided above. Philip K. C'ox, Owner Cox's Market Plaza PKC lmc LT31C1CMPIMARiTENANCE\Ficus2ndRequest20151026 Enclosures: Sewer Camera USB Thumb Drive Exhibits A, B & C Check # 14732 Work sheet of expenses Copy to: Jeffrey C. Parker City Manager, City of Tustin Delivery, By Hand Walter M. Crandall, Esq. 2 Parkway Plaza, Suite 730 Irvine, CA 92614 Delivery by e-mail Received by Received by COam Moc wy/, ' = o 's d c� am OD a N m d ./0^^ N .- _ Mc � V m a' = C6 .m *r o T- c ■ w 1i .OIM i M .U) O Ma C _ c� N Ins N r M L O F- 0 UJ a N Q �o°�ao u !y+ N 'awIt- am W, ._ V. 1 � cm =off=�W O= d �+ C LL U d O O 0 L t 0 O H e- Q. O a O v 0 's = IL 3 O m V r C IL O m � CL 'a a m m IL R L fA x O O m s 3 L m m cq m m d y�— y � C O v 0 's = IL 3 O m V r C IL O m � CL 'a a m m IL R L fA x O O m s 3 L m m cq m In O N w N L m O v m N O OVal }, N a v O � m ae I C C G o, c F I N C Ww 0 X a IL fi m V W a O o L = � C � ac d v O LLU k W 0 3 � IM6oLL V` b "k v': ■ 44 ►1 ♦4) -- --- ADOPT A FI CUS TREE If a person likes a ficus tree and wants to preserve it on city property, then they should be willing to adopt it and take care of any damage it causes to adjoining property. Adoption may be given to one or more parties and any liabilities will be shared equally among those adopters. To determine if the adopted tree has caused damage then the determining factor as to which tree will be determined by simply the measurement from the damage to the closest tree. With the exception of leaves from the adopted tree, cleanup of any residue, fruit or other deposits, dropped on public or private property shall be cleaned up at the adopters expense. In the aspect of a change of mind on the benefits of adoption, then that adopting party will cause the tree's removal at their expense. The adopted tree will be identified by measurement from a fixed position and by photograph of the tree with the fixed position in the background. e • Plumbing - drain Cleaning - Sewer Lines 740 Hariton St. Orange, CA 92868 Phone: 714-457-9407 Fax: 714-771-7481 www.RescueRooter.com imorgan(cD-ars.com � oposas DATE August 11, 2014 Location lD# Customer ID Quotation valid until: September 11, 2014 Prepared by. Joe Morgan Proposal To: Job Location (if different): Customer Name: Phil & Linda Cox Name: Company Name: Cox Market Plaza Company Name: Address: 405 EI Camino Real Address: City/State/Zip: Tustin, CA 82780 City/State/Zip: Phone: 714-227-4610 Phone: Rescue Rooter0 proposal to furnish all materials, labor, subcontractors and permits necessary to complete the followina : Description of Work Proposal for a spot repair under the building sidewalk/walkway. Visual of root intrusion and a damaged mainline pipe. Option 1: Saw cut a 3x3 area, 8' deep. Install shoring. Cut ABS failed mainline section. Camera upstream/downstream. Make repair. City of Tustin will inspect and sign off. Backfill dirt and apply concrete. Concrete will be approx 2 1/2' deep because of the raised step/walkway. Proposal includes labor for one Tech and one helper, parts and materials, concrete, shoring, concrete saw, jackhammers, cones, yellow tape, camera recording, and proper permit. $ 6896.12 Option 2: Client will provide concrete work from sub -contractor. $4750 *We will notify the client if further repairs or problems are found beyond the scope. PROPOSAL PRICE TOTAL 1 $6,896.12 Any unforeseen conditions, alterations or deviations from the above specifications involving extra costs will be executed only upon written change orders signed by both parties and will become an extra charge over and above the original proposal Respectfully Submitted by: Joe Morgan Date: 8/11/2014 Acceptance of Proposal The above prices, specifications and conditions are satisfactory and herby accepted. You are authorized to do the work as specked. Payment will be made as outlined above. Accepted by: Date : Signature Signature THANK YOU FOR YOUR BUSINESSI O2014 ARS Rescue Rooter All Rights Reserved License # 765155 Branch # 8101 ATTACHMENT B Field Services Manager's letter Dated December 10, 2015 Department of Public Works Douglas S. Stack, P.E. Director December 10, 2015 VIA FIRST CLASS MAEL Mr. Philip K. Cox Cox's Market Plaza P.O. Box 6069 Brookings, OR 97415 Re: Reguest for Removal of Ficus Trees at 120,140 and 150 East Main Street. 2)11tin Dear Mr. Cox: Please accept this correspondence as the City of Tustin's ("City'l response to your October 26, 2015 request for removal of three Ficus trees located within the public right-of-way at 120, 140 and 150 East Main Street in the City of Tustin. In addition to your October 26, 2015 request, the City has considered the photographic and video documentation you provided with your letter, as well as your August 16, 2015 correspondence. After due consideration, the City is denying your request at this time. As a multi-year recipient of the National Arbor Day Foundation's "Tree City USA" award, the City is dedicated to preserving trees within the City in order to enhance the aesthetic image of the community and to promote general environmental quality within the City. With that in mind, it is the City's goal to maintain all currently existing trees within City rights-of-way absent a clear need to remove a tree. Indeed, Tustin City Code ("TCC") section 7306(b) states that "a healthy tree specimen will not be removed [from the public right-of-way] unless it has caused damage to an adjacent property or is determined to be unsafe." First, there is no evidence that the three Ficus trees you have identified are unsafe in any manner. Further, the evidence submitted with your request is insufficient to establish which, if any, of the identified Ficus trees have caused damage to your property. Without clear evidence to support a finding that a particular tree within the public right-of-way is causing damage to property, the City is not prepared to authorize removal. Enclosed you will find the $1,680.00 check submitted with your October 26, 2015 request which we are returning to you. Pursuant to TCC section 7307 you have the right to appeal this decision to the City's Director of Public Works. Any appeal must be made, in writing, to the Director of Public Works within 30 days of the date of this correspondence. Should you wish to discuss this matter further, please do not hesitate to contact the undersigned at 714.573.3355. 300 Centennial Way, Tustin, CA 92780 1128883.1 P: (714) 573-3150 • F: (714) 734-8991 • www.tustinca,org Mr. Philip K. Cox ]December 10, 2015 Page 2 Respectfully, RC1.1IL Fie d Services Manager City of Tustin Enclosure cc: City Attorney City Manager Walter M. Crandall, Esq, 1126883 1 0 ,I st gr Ll - Ir 0 La a Ln cr Q .m 0 •• cc Ln rm 0 0 0 ra ru ve •• IL 0 IL ATTACH M ENT C Cox Market Plaza Appeal Letter Dated January 9, 2016 ROBERTSON & OLSIEN, L11' A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS January 9, 2016 r1a Certified U.S. Mail Douglas S. Stack, P.E. Director of Public Works City of Tustin 300 Centennial Way Tustin, CA 92780 RECEIVED JAN 1 1 2016 TUSTIN PUBLIC WORKS DEPT. Re: Appeal of City's Denial of Request for Removal of Ficus Trees at 120,140, and 150 East Main Street, Tustin Dear Mr. Stack, This office has been retained by Cox's Market Plaza to assist with its request for the removal of the three ficus trees that the City of Tustin denied through a letter sent by your office's Field Services Manager, Jason Churchill, on December 10, 2015. Please send all further communications regarding this matter to my office at the address provided below. Cox's Market Plaza through its owners, the Cox Family Trust, hereby appeals the City's denial of the request for the removal of the three ficus trees. Replacing these ficus trees with trees that will cause little or no property damage to the adjacent property owners will not subtract from the City's dedication to enhance the aesthetic image of the community and to promote general environmental quality within the City. This is the exact reason why without any legal obligation to do so, Cox's Market Plaza included with its tree removal request, a check for $1,680.00 designated to be used for the removal of the three trees; and, indicated a willingness to donate up to an additional $1,500.00 toward the planting of three replacement trees of a species that is more appropriate for urban planning. This offer remains open should the City grant Cox's Market Plaza's request for removal of the three trees. Enclosed is a copy of an article from Ornamentals Northwest Archives where Pavel Svihra, Horticultural Advisor to the University of California summarized an Australian study which ranked the ficus as the leading tree species whose roots are likely to cause damage to sewage and drainage pipes. Tustin City Code Section 7306(b) states that, "A healthy tree specimen will not be removed unless it had caused damage to adjacent property or is determined to be unsafe." Mr. Churchill's statement that, "there is no evidence that the three Ficus trees [Mr. Cox had] identified are unsafe in any manner" is conclusory and fails to consider potentially unsanitary conditions the roots of the City's ficus trees can potentially cause if they continue to shift, break, and block the underground sewage and drainage pipes of the adjoining properties. Assuming arguendo, Mr. Churchill is correct in his statement that these three trees are not unsafe in their current condition, section 7306(b) still authorizes the removal of these trees if they have caused damage to an adjacent property owner. In this case, these trees have damaged the adjacent property by shifting, breaking, and blocking Cox's www.roIawfirm.com ORANGE COUNTY: 2601 MAIN STREET SUITE 500 IRVINE, CA 92614 (714) 361-2111 (714) 361-2110 FAX LOS ANGELES: 9696 CULVER BOULEVARD SUITE 301 CULVER CITY, CA 90232 (310) 388-4870 (310) 388-4871 FAX Page 2 Mr. Churchill January 9, 2016 Market Plaza's sewage and drainage lines. Cox's Market Plaza is currently being forced to spend its entire maintenance budget to hire contractors to repair and clear these lines to allow for the proper drainage of sewage from the property. Mr. Churchill's letter states, "[T]he evidence submitted with [the] request is insufficient to establish which, if any, of the identified Ficus trees have caused damage to [Cox's Market Plaza's] property." His letter continues, "Without clear evidence to support a finding that a particular tree within the public right-of-way is causing damage to property, the City is not prepared to authorize removal." This logic is flawed and it prescribes an incorrect burden of proof that will not be upheld by the Court if my client is forced to seek a writ of mandamus. California Evidence Code Section 140 defines "evidence" as, "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." [California Evidence Code Section 140] California Evidence Code Section 115 provides that, " `Burden of proof means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." [California Evidence Code Section 115] "Preponderance of the evidence" means that the fact is more likely to be true than not true and a party may establish their burden of proof through indirect evidence, which proves a fact indirectly. As far as the law is concerned, indirect evidence receives the same weight as direct evidence. Per your request, my client, at its own expense, hired a plumbing contractor to run a sewer camera through the main discharge lines at Cox's Market Plaza, and the camera captured footage demonstrating ficus root penetrations blocking the sewage lines below the surface of the property. When the locations of the pipe blockages are compared with the locations of the three ficus trees at issue, it is more likely than not that these three trees are the root cause of the property damage. For this reason, per Tustin City Code Sections 7306(b) and 7307, Cox's Market Plaza respectfully requests that the City of Tustin reconsider the denial of the request to remove these three ficus trees, and replace these three ficus trees with a tree species that is more appropriate for urban planning in order to prevent any further damage to my client's property. Please do not hesitate to contact me should you have any questions. Very Truly Yours, Waiter M. Cra*,cuit Walter M. Crandall Enclosure cc: Philip K. Cox, Cox's Market Plaza Jeffrey C. Parker, Tustin City Manager Toni L. Burnside, Administrator at Woodruff, Spradlin Smart Pavel Svih ra ORNAMENTALS July -August 1987 Horticultural Advisor NORTHWEST Voi.I1, Issue I Univ. of Calif. Alameda County ARCHIVES Page 7 224 W.Winton Ave. Rm. 174 Hayward, CA 94544 RANKING OF TREES ACCORDING TO DAMAGE OF SEWAGE PIPES In landscape design, it is important to select tree species whose roots are less likely to enter sewage and drainage pipes. Few quantitative data have been available for California landscape architects and contractors which would help them to recognize the species that notoriously Table: Ranking of Woody Ornamentals Based block sewage pipes. Recently two Australian on Their Frequency of Sewage and Drainage scientists, B.P. Wilkins and R. J. Turner, PIPE published results of their five-year study DAMAGE investigating 460 cases of drainage pipe BYROOTS blockage by the roots of more than 60 woody Rank BOTAMCALNAME ornamentals planted in Sydney. Such a large sample allowed them to rank the different tree I Ficus spp. 15.9 species according to frequency of damage and 2 Eucalyptus spp. 12.2 probability of occurrence. These results are 3 Salix spp. 11.3 very precious for California landscape 4 Liquidambar spp. 6.3 architects and contractors because most of the 5 Jacaranda spp. 6.1 species investigated in Sydney are planted here. 6 Populus 4.6 7 Nerium oleander 43 From this table it is apparent that of the 460 9 Acer spp. 2.4 cases, figs, eucalypti, willows, liquidambars 10 Cinnamomum camphora 2.2 and jacarandas were most frequently found to 11 Wisteria spp. 2.0 cause damage. Members of the family 12 Cupressus spp. 1.7 Moraceae most frequently plug pipes, and in 13 Fraxinus spp. 1.5 some cases (i.e. figs) their roots were capable 13 Morus spp. 1.5 of blocking a drain 90 feet from the tree stem. 14 Primus 1.3 Also trees that enjoy swampy conditions in 15 Callistemon spp. 1.1 their natural habitat, such as Melaleuca sp. and 15 Grevillea robusta 1.1 Salix sp., are notorious for causing damage. 16 Camellia spp 0.9 Even smaller shrubs such as oleander and 17 Ulmus SDD. 0.7 camellia showed an unexpectedly high 18 Hedera spp 0.4 incidence of damage to pipes. 19 19 F,scallonia -,nn Magnolia spp. 0.2 0.2 The data also revealed the occurrence of a 19 Malus spp. Pittosponun undulatum 0.2 0.2 significantly higher number of pipe blockages 19 Quercus spp 0.2 during the fall and winter period than 19 Thuja plicata 0.2 throughout the growing season. This might 19 Tristania laurina 0.2 suggest that root growth continues in drainage and sewage pipes during the fall and winter, or perhaps because these seasons are associated with frequent rains, the failure of drainage is noticed more often than during the dry summer. Conclusions and Recommendations Correct selection of tree species will result in fewer pipe blockages, fewer tree removals, and less labor for root cutting. Near and above pipes, plant palms, ferns and monocotyledons because they develop roots in a very tight rootball close to the stem. Although roots have been accused of causing much damage to pipes, in most instances searching roots entered through a crack. Therefore use P.V.C. pipes. P.V.C. pipes and their joints are more flexible; as a result, they are less likely to crack after soil settling. Additionally, their joints are sealed and water leakage is prevented. Remember, if roots are cut in the pipe, they will respond with rapid re -growth of a thick mat of finer roots (the same as when a stem is topped), resulting in a fast blockage of the pipes. Therefore replacement of the affected section with P.V.C. pipe is more lasting and usually prevents tree removal. Roots grow more easily in loose or sandy soils where their distribution will be even. However, in situations where a landscape must be done in rock or clay soils, the probability is that roots will grow alongside pipes where soil was disturbed by trenching. Plant trees a few yards away from the trench and use bottlebrush, shrubby grevilleas and junipers. Never plant figs, eucalypti, willows, liquidambars, jacarandas, poplars, oleanders, maples and camphor trees near sewage or drainage pipes or septic sinks. Pesticide Use - Due to constantly changing laws and regulations, no liability for the suggested use of chemicals in this Newsletter is assumed by the ONW Newsletter. Pesticides should be applied according to label directions on the pesticide container. Permission to Reprint material appearing in the ONW Newsletter is granted with the request that you credit the source: Ornamentals Northwest Newsletter, date, volume, issue, page numbers. Do not excerpt or reprint in such a manner as to imply the author's endorsement or criticism of a product or concept. Nondiscrimination - The information in the Ornamentals Northwest Newsletter is provided with the understanding that no discrimination is intended and that listing of commercial products implies no endorsement by the authors. Criticism of products or equipment is neither intended nor implied. ATTACHMENT D Director of Public Works Letter Dated February 10, 2016 w Department of Public Works Douglas S. Stack, P.E. Director February 10, 2016 Robertson & Olsen, LLP Walter M. Crandall, Esq. 2601 Main Street, Suite 500 Irvine, CA 62614 RE: Appeal Request for Ficus Tree Removal at 120, 140,and 150 East Main Street Dear Mr. Crandall: This letter serves as the City of Tustin's ("City") response to the appeal submitted by Cox Market Plaza on January 9, 2016. On October 26, 2015, the Cox Market Plaza submitted a request in accordance with Tustin City Code ("TCC") section 7306(b) asking the City to remove three ficus trees located within the public right-of-way at 120, 140, and 150 East Main Street in the City. In accordance with TCC section 7301, the City maintains and exercises full power, authority, and jurisdiction over all trees, plants, or shrubs in or growing upon or over any public parkway street, highway, alley, right-of-way, and City -owned property in the City. While the City's Manager of Field Services is authorized to remove trees which are determined to be blighted, diseased, or unsafe to the public (TCC section 7306(a)), TCC section -7306(b) states that "a healthy tree specimen will not be removed unless it has caused damage to adjacent property or is determined to be unsafe." The Cox Market Plaza failed to provide sufficient evidence that the three ficus trees it requested the City remove either caused damage or were unsafe. As a result, on December 10, 2015, the City Field Services Manager denied the request for removal. I have reviewed your letter appealing the City's December 10, 2015 denial, the attached 1987 article entitled "Ranking of Trees According to Damage of Sewage Pipes," and the photographic and video documentation you provided. The evidence provided still does not sufficiently demonstrate that these particular trees are unsafe or have caused damage. While the video does appear to show plant roots within the sewer line, it does not prove the roots grew through and damaged the line or that they are from any tree in particular. The City does not share your position that the mere "potential" to cause damage to a sewer line justifies the removal of any tree. Moreover, the TCC does not authorize this Department to remove City trees without a determination that a specific tree is unsafe or causing damage. 300 Centennial Way, Tustin, CA 92780 • P: (714) 573-3150 9 F: (714) 734-8991 • www.tustinca.org 4 Page 2 Mr. Crandall 10 February 2016 As a result, the appeal by Cox Market Plaza is denied. Should you wish to appeal this matter to the City Council, you must submit a written appeal within 30 days to the attention of the City Clerk. While I am not able to reconsider your appeal, should you wish to provide further evidence in the future to identify with specificity that a tree that is unsafe or causing damage, as well as any documentation to demonstrate efforts by the Cox Family Trust to properly maintain the sewer line, grease interceptor and surrounding area to Code, please do not hesitate to submit a new request to the City's Manager of Field Services. Best regards, D la S. Stack, P.E. e r Public Works/City Engineer Jeffrey C. Parker, City Manager Erica N. Rabe, City Clerk Jason Churchill, Field Services Manager ATTACHMENT E Cox Market Plaza Appeal Letter Dated March 10, 2016 ROBERTSON & OLSEN, «P A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS March 10, 2016 Ira Hand Delivery and Email City of Tustin Attn: City Clerk 300 Centennial Way Tustin, CA 92780 cityclerk@tustinca.org Re: Appeal of Tustin Department of Public Works' Denial of Appeal of Request for Removal of Ficus Trees at 120, 140, and 150 East Main Street, Tustin, California Dear Sir/Madam, This office received the letter dated February 10, 2016 from the City of Tustin's ("City") Director of the Department of Public Works. In the letter, the Director denies the Cox's Market Plaza's appeal of the City Field Services Manager's denial of a request to remove three of the City's ficus trees that are causing damage to the Cox's Market Plaza property at 120, 140, and 150 East Main Street, Tustin, California. Cox's Market Plaza through its owners, the Cox Family Trust, hereby appeals the Director of the Department of Public Works' denial of their prior appeal, and appeal this issue to the Tustin City Council. Should the City Council decide not to reverse the Department of Works' denial of the request to remove the ficus trees based on this letter and the documentary evidence provided to the Department of Public Works, which is incorporated herein by reference, Cox's Market Plaza requests a hearing on this issue. In summary, Cox's Market Plaza submitted evidence that it is exhausting almost its entire property maintenance fund to clear the sewer lines beneath the property due to the invasion of the City's ficus tree roots. Instead of demanding payment for these expenses from the City, Cox's Market Plaza offered to donate a specific amount toward the removal of these trees and the planting of other trees with roots that are less likely to cause this type of damage in the future. Cox's Market Plaza's offer will remain open should the City reverse the denial of the appeal and grant the request for removal of the three trees before, or during, the hearing requested above. Through its prior correspondence, the City has acknowledged that the evidence submitted to it demonstrates that plant roots have penetrated the sewer lines under Cox's Market Plaza. Despite evidence that the plant roots are unmistakably ficus roots, the City attempts to deny responsibility for the damage caused by its trees. In the December 10, 2015 letter denying the original request, the City states, "there is no evidence that the Ficus trees you have identified are unsafe in any manner," and, "Further, the evidence submitted with your request is insufficient to establish which, if any, of the identified Ficus trees have caused damage to your property." In the second letter denying the www.roIawfirm.com ORANGE COUNTY: 2601 MAIN STREET SUITE 500 IRVINE. CA 92614 (714) 361-2111 (714) 361-2110 FAX LOS ANGELES: 9696 CULVER BOULEVARD SUITE 301 CULVER CITY, CA 90232 (310) 388-4870 (310) 368-4871 FAX Page 2 Tustin City Clerk Re: Appeal of Denial to Remove Trees March 10, 2016 prior appeal, the City states, "The evidence provided still does not sufficiently demonstrate that these particular trees are unsafe or have caused damage." Based on previous City Agenda reports published online, Cox's Market Plaza anticipates that the City will argue that, "The responsibility to maintain a sewer line belongs to the property owner, and roots do not enter and grow inside a sewer line unless there is a break, crack or offset in the line which then causes leaking and attracts the roots to the water." This logic is flawed, self-serving, and disproven by arborists and engineers demonstrating that tree roots have the ability to break, crack, crush, offset and bend sewer lines just as they do the concrete laying above them on the surface. If Cox's Market Plaza is forced to seek a writ of mandate from the Superior Court, the City will be held to its duty to identify which of its trees are causing the damage to the adjacent properties, to remove trees that are causing damage to adjacent properties, and to reimburse the property owners for the damage caused by City tree roots that are invading adjacent properties. For these reasons, per Tustin City Code Sections 7306(b) and 7307, Cox's Market Plaza respectfully requests that the City of Tustin reconsider the denial of the request to remove these three ficus trees, and replace these three ficus trees with a tree species that is more appropriate for urban planning in order to prevent any further damage to its property. Nothing in this letter, or otherwise, is intended to be, nor shall it be deemed to be, a full and complete statement of the facts in this matter. This letter shall not be construed as a waiver of any legal or equitable rights or remedies, all of which are expressly reserved and may be exercised or asserted by our client at any time without further notice except as required by applicable law. Please do not hesitate to contact me should you have any questions. Very Truly Yours, Walter- M. Cra+ida & Walter M. Crandall, Esq. cc: Philip K. Cox, Cox's Market Plaza Jeffrey C. Parker, Tustin City Manager David E. Kendig, Tustin City Attorney ATTACHMENT F Cox Market Plaza Supplement Correspondence Dated June 3, 2016 ROBERTSON &OLSEN, LL• A LAW PART NERS"M 1NCLUI)MG f ROFESS1oNAL CORPORATIONS June 3, 2016 Via [IS. Mail Kendra L. Carney Woodruff, Spradlin & Smart 555 Anton Boulevard, Ste. 1200 Costa Mesa, CA 92626 kcarney@wss-law.com Re: Follow-up to Cox's Market Plaza's Appeal of Denial of Request for Removal of Ficus Trees at 120,140, and 150 East Main Street, Tustin, California Dear Ms. Carney, Thank you for your phone call yesterday regarding the letter dated March 10, 2016 where Cox's Market Plaza appealed the City of Tustin's ("City") Director of the Department of Public Works' denial of Cox's Market Plaza's appeal of the City Field Services Manager's denial of Cox's Market Plaza's request to remove three of the City's ficus trees that are causing damage to the Cox's Market Plaza property at 120, 140, and 150 East Main Street, Tustin, California. Cox's Market Plaza hereby restates its request for a hearing on this issue should the City Council refuse to reverse the Department of Works' denial of the request to remove the ficus trees based on the prior letters and the documentary evidence provided to the Department of Public Works. In further consideration of Cox's Market Plaza's request for the removal of the Ficus trees, please find enclosed two letters from Greg Applegate, a registered consulting arborist from Arborgate Consulting, Inc. located in Tustin. In his first letter, Mr. Applegate verifies that the tree roots causing damage to Cox's Market Plaza are ficus roots and appear to stem from the City's Ficus trees adjacent to the property. Mr. Applegate also explains that Ficus roots grow horizontally underground where they are known to trespass into the properties of adjoining businesses and that Ficus roots are strong enough to off -set, crush, and block sewer lines. The damage to the brickwork of its building and blockage of its sewer lines experienced by Cox's Market Plaza forms the basis for its request for the removal of these trees. One potential solution recommended by Mr. Applegate to prevent further damage to the brickwork of the building and the sewer lines is for the City to remove the sidewalks to out the Ficus roots and to then install root barriers; however, Mr. Applegate cautions, this solution brings with it the potential drawbacks of the trees toppling over if the roots are clipped too closely to the base of the tree; and, Ficus tree roots are known to break out from root barriers by growing vertically down and then up and around the barriers. Mr. Applegate concludes that because the roots are causing more damage to adjoining businesses than benefits, such as Cox's Market Plaza., removal of the Ficus trees is the most reasonable solution. www.roIawfirm.com ORANGE COUNTY: 2601 MAIN STREET SUITE 500 IRVINE, CA 92614 (714) 361-2111 (714) 361-2110 FAX LOS ANGELES; 9696 CULVER BOULEVARD SUITE 301 CULVER CITY, CA 90232 (310) 388-4870 (310) 388-4871 FAX Page 2 Ms. Carney Re: Follow-up to Appeal of Denial to Remove Trees June 3, 2016 Without any legal obligation to do so, Cox's Market Plaza has previously offered to pay up to $3,180.00 toward the removal and replacement of the Ficus trees surrounding its property at the corner of Main and El Camino Real. If the City's contractor's price exceeds this amount, please advise us of a suggested amount, for my client's consideration. If the City agrees to remove the Ficus trees and plants a more appropriate tree species for urban planning, Cox's Market Plaza is willing to extend this offer one final time, and is also willing to waive the damages it has incurred due to the City's Ficus trees. If the City fails to accept this offer, Cox's Market Plaza will have no choice but to turn to the Court for a writ of mandamus ordering removal of the trees and will seek monetary damages to compensate it for the injuries caused by the City trees' trespass. This offer will expire at the close of business on July 1, 2016. Nothing in this letter, or otherwise, is intended to be, nor shall it be deemed to be, a full and complete statement of the facts in this matter. This letter shall not be construed as a waiver of any legal or equitable rights or remedies, all of which are expressly reserved and may be exercised or asserted by our client at any time without further notice except as required by applicable law. This letter is an inadmissible settlement offer pursuant to California Evidence Code section 1152(a). Please do not hesitate to contact me should you have any questions. Very Truly Yours, Wauvh- M. Cra*ulaw Walter M. Crandall, Esq. cc: Philip K. Cox, Cox's Market Plaza ARBORGATE CONSULTING, INC. �MN11�11 t.1 It JIM A IM MIIII IIalot March 31., 2016 Mr, Phil Cox Cox's Market Plaza 435 El Camino Real Tustin, CA 92780 Re: Ficus m. Nitida Street Trees Dear Mr. Cox: Thank you for asking me to meet with you and discuss the root problems you have experienced around your property at the above address. You explained that roots have come into drain lines and sewer lines almost completely around the property and even inside some of the stores. The City has been reluctant to deal with the damage issues and has asked for proof that the roots are from the City street trees. Observations The street trees on two sides of your property are Indian laurel, Ficus microcarpa Nitida. On average they have about 15 to 20 inch trunk diameter and have been planted here on Main and El Camino for as long as I can remember. You had saved root samples from past drain line or sewer line clearance jobs and allowed me to examine them. It is clear from the color, texture, and more horizontal lenticels on the root epidermis that they are in fact Ficus roots. Analysis As a consulting arborist working here in Orange County since 1975, I am very familiar with this species is southern California. My office has been in North Tustin for the last 20 years. While working with Disney I worked alongside the man whose family introduced this tree. I have had consults all over southern California working with the problems this species has created. As a member of the Street Tree Seminar, I have heard many discussions from various street tree superintendents grousing about what to do with the large number of these lovely trees in their inventories. In the past the City responded to your requests by asking how can they know they are from the City street trees. You and I discussed DNA testing to answer this question, but came to the obvious conclusion that since there are no other trees planted on the property or nearby, that there should be no need for elaborate scientific methods. Even if that was not the case, one of A"ORGATE CONSULTING, INC. Hor6cultute & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7184, Fax 714.731.6138 3/31/2016 Ficus m. Nitida Street Trees page 12 the drawbacks to even using DNA testing is that nearly all Ficus microcarpa Nitida are grown from cuttings, malting them essentially clones, i.e. having identical DNA. I have seen situations where this species was planted in a parking lot island; the roots grew under the parking lot island curb; grew under the asphalt; under the curb and sidewalk; under the building foundation and came up in the area drains inside the adjoining businesses. This situation is not as extreme as that, but I have no difficulty understanding, even expecting, that these trees can do as much. In this situation the roots do not have as much distance to grow and do not have the two sets of curbs to grow under. I have seen young Indian laurels put out new roots 8 to 10 feet from the trunk in one year. One of the factors that led to the current troubles is that many cities jumped on this then new species before anyone had much experience with it. Many cities all over southern California are having the same problem with excessive root damage. When it comes time to select a new replacement species, hopefully more thought will be put into selecting a tried and true tree species. The booklet "Street Trees Recommended for Southern California" by the Street Tree Seminar is likely to be of assistance with the selection process. Since there is little the City can do to keep these roots out of your property after allowing them to grow to this size, removal is the most reasonable solution. About the only other option would be to remove the sidewalk and install a continuous root barrier between the trees and your property. Since the roots may still come in by following sewer lines, drain lines, or other underground utilities, those points would need to be wrapped and sealed with BioBarrier fabric. Even then, there is a chance some roots may grow under the root barrier. In my experience the vertical ribs on most commercial root barriers deflect roots downward so that they are more likely to be able to reach the bottom of the root barrier and come up on the other side. A better solution is to use 80 ml moisture barrier for the root barrier. It is smooth, and since Ficus are shallow rooted, when the roots encounter the barrier they are more likely to turn horizontally than grown down and under. 1 remember a number of years ago when the Old Town area had a redesign and root barriers were installed around the already large street trees. It was only a couple days later when the wind came up that several toppled. Roots should never be cut closer than 5 times trunk diameter on such trees. I was somewhat surprised, but happy when more didn't fall over. The best solution would be to start fresh. These trees have outlived the average life expectancy for urban street trees, i.e. trees confined in small sidewalk cutouts. They have reached a point where they do help create a lovely streetscape, but they were a poor choice in the first place and have reached a point of diminishing returns, i.e. where they are causing more damage to adjoining businesses than benefits. A sudden change to new street trees throughout old town Tustin would be hard to accept politically, but a phased replacement would be more acceptable. A review of the booklet, "Reducing Infrastructure Damage by Tree Roots", by Costello and Jones from the UC Cooperative Extension, would provide strategies to help the replacement trees last longer and cause less damage. ARBORGATE CONSULTING, INC. Horticulwre & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7184, Fax 714.731.6138 3/31/2016 Ficus m. Nitida Street Trees P a g e 13 Recommendations 1. As part of a phased project, remove existing trees and as much of their roots as practical. 2. Determine the most appropriate species and size for replacement. 3. Do a percolation test at the same depth as the bottom of the planting pit. 4. If percolation is less than I Vhr., install a positive drainage system for all the planting pits or structural soil areas. 5. Consider using a type of structural soil under the paving, bordered by at least a 3' deep moisture barrier, to maximize root space and minimize root damage. See link below: https://www.asta.org/uploadedFfles/CMS&Ieetings_pnd Events/2010—Annual Meeting Handou ts/Sat-B 1 The%24Great%20Soi1%20Debate_Structural%20Soils%20Under%20Pavement.pdf Please call me if you have any questions. Respectfully submitted, Arborgate Consulting, Inc. Greg Applegate, ASCA, ASLA Registered Consulting Arborist #365 Enclosed: resume A"ORGATE CONSULTING, INC. Horticulture & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7191, Fax 714.731.6138 ARBORGATE CONSULTING, INC. ANINN"I t'111 *1 f IX RIN (51111M May 22, 2016 Mr. Phil Cox Cox's Market Plaza 435 El Camino Real Tustin, CA 92780 Re: Ficus Street Trees in Tustin Dear Mr. Cox: Thank you for asking me to examine various Indian laurel street trees around the City of Tustin. We examined trees from those at El Camino Real and Main to those on El Camino Way, First Street, Prospect, South B Street, and South C Street. Observations Based on the amount of lifted sidewalks and new paving around ficus street trees, one noticeable factor in how much damage was being done was whether or not the tree was in a cutout or in a parkway. Those in sidewalk cutouts caused significantly more damage. Those in very narrow parkways, such as the Ficus in front of Parque Santiago, caused more damage than those in wider parkways. Naturally, this is to be expected. The paving around the Indian laurel on El Camino adjoining your property was recently repaired and roots cut on the south side. The roots were cut about 18 inches from the trunk on the east side and to an unknown depth. Roots may have also been cut on the north side, but sand was piled over that area. I'm sure it comes as no surprise that the one on the west corner of the building at 137 Prospect appears to be damaging the building itself. Note the lower photograph on page 3. Discussion Indian laurel was a common street tree in years long past, but has never been listed in any edition of Street Trees Recommended for Southern California. In discussing its use with one of the two Evans brothers that introduced this species to southern California, Bill Evans of Disney fame, he said he never intended it for street tree use. Anyone familiar with this tree's potential size and the nature of its roots would not place it near buildings or paving. However, it is a tree that looks great year round and the cities that have planted it have been pressured into keeping them as long as possible mostly by local tree lovers who do not individually pay for the damage they do. ARBORGATE CONSULTING, INC. H)rr cWwre & ArboricWture 1131 Lucinda Way, Tustin, CA 92780, Pk 714.731.6240, Cell: 714.292.7184, Fax 714.731.6138 5/22/2016 Ficus Street Trees in Tustin Page 12 Those who pass through the areas with large old ficus appreciate the look, but those who live or have businesses on streets lined with them have an entirely different view of this species. Many call them "living jack -hammers" or worse. Certainly they are costing the City much more than more appropriate smaller species, but they are also costing those who live or have businesses on these streets much more. Many cities have also had a larger number of law suits for trip and fall accidents due to the difficulty in maintaining the sidewalks around these trees in a safe condition. This says way too little of the pain and sometimes crippling injuries that mostly older citizens have suffered. Also consider the great risk that the line clearance workers have that trim those ficus that are under electrical lines. This is extremely hazardous work. I know that the Ficus adjoining your property have cost you a considerable amount of money, time and concern. They have also been a concern to your renters. I am sure that other business and property owners have been similarly affected. Now that these trees are large mature trees, there is little that can be done to stem the tide of lifted paving, trip and fall accidents, building damage, blocked sewer lines, and other infrastructure damage. Since these trees were planted there are more tools and strategies for dealing with new plantings of larger trees in smaller openings or spaces. However, this is one species that has 'but -witted" many such newer options. Root barriers have been grown over by Ficus roots and joints between root barrier panels have been broken open. Silva -Cells provide more root space, but cost too much to make enough root space to accommodate this large species and certainly do nothing to confine them. Look up at an average Tustin Ficus street tree that has not recently been heavily pruned, and try to estimate the volume of wood in the limbs and branches. There is at least that much root volume below ground. A large part of the problem is how difficult it is to know where all the roots have grown. In your case, they are coming up in back of your building, coming up in area drains and off -setting, blocking or crushing sewer lines. This is too large and too aggressive of a species for sidewalk cutouts and even most residential streets with typical parkways. The City itself has recognized the issues with this species and has said in writing that they need to be removed and replaced. A number of streets have had many removed already and there are less than half the planting spaces with Ficus than there were originally, such as on South B and C Streets. It seems to be a "catch 22" situation. The longer it takes to remove them, the more related expenses there are that take away from the budget to replace them. The situation will not get better by putting if off longer. The problem is growing about as fast as the trees do. Recommendation Do whatever it takes to step up the rate of removal of these trees. I would not be surprised if business and property owners are willing to have a special assessment district created to pay for this much needed operation, especially the owner of the property at 137. Priority should be given to areas where the trees are in sidewalk cutouts and where the buildings are in closer proximity to the trees. ARBORGATE CONSULTING, INC. Horticulture & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7184, Pax 714.731.6138 5/22/2016 Ficus Street Trees in Tustin Page 13 Photographic Documentation Naft ant Gait opposite the left edge of the pavers and the pile of sand and pavers on the north side, 41 M r Note the separated bricks at the lower edge, by the asphalt patch. ARBORGATE CONSULTING, INC. Hotticulture & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7184, Fax 714.731.6138 5/22/2016 Ficus Street Trees in Tustin Page 14 .y r paving and curb to be removed and replaced, and standing water for mosquito breeding. ARBORGATE CONSULTING, INC. Hotticultute & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7184, Fax 714.731.6138 5/22/2016 Ficus Street Trees in Tustin P Is Beyond the obvious paving damage, its hard to know how much infrastructure has also been damaged Please call me if you have any questions. Respectfully submitted, (", k� Arborgate Consulting, Inc. Greg Applegate, Registered Consulting Arborist 9365 ARBORGATE CONSULTING, INC. Horticulture & Arboriculture 1131 Lucinda Way, Tustin, CA 92780, Ph. 714.731.6240, Cell: 714.292.7184, Fax 714.731.6138