BOARD OF APPEALS, CITY & COUNTY OF SAN FRANCISCO NOTICE OF APPEAL

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1 BOARD OF APPEALS, CITY & COUNTY OF SAN FRANCISCO Appeal of Appeal No PHILLIP LANDRUM, ) Appellant(s) ) ) vs. ) ) SAN FRANCISCO PUBLIC WORKS ) BUREAU OF URBAN FORESTRY, ) Respondent NOTICE OF APPEAL NOTICE IS HEREBY GIVEN THAT on March 18, 2016, the above named appellant(s) filed an appeal with the Board of Appeals of the City and County of San Francisco from the decision or order of the above named department(s), commission, or officer. The substance or effect of the decision or order appealed from is the DENIAL on March 04, 2016, of a Tree Removal Permit (denial of request to remove two trees with replacement of two trees adjacent to the property) at 33 Amethyst Way. ORDER NO FOR HEARING ON May 18, 2016 Address of Appellant(s): Phillip Landrum, Appellant 110 Greenwood Circle San Francisco, CA Address of Other Parties: N/A

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6 April 28, 2016 By Messenger President Darryl Honda San Francisco Board of Appeals 1650 Mission Street, Room 304 San Francisco, CA Re: Owner s Appeal of Department of Public Works Order No Address: 33 Amethyst Way Hearing Date: May 18, 2016 Our File No.: Dear President Honda and Commissioners: On behalf of Phillip Landrum ( Owner ), the owner of the property at 33 Amethyst Way ( Property ) we write to oppose Department of Public Works ( DPW ) Order No ( Order ; attached as Exhibit A), which denied the Owner s application to remove two blackwood acacia street trees planted in front of the Property. The Board should overturn DPW s determination and allow removal of these trees because: The subject trees are an inappropriately large species planted in a narrow sidewalk that obstruct pedestrian passage. DPW has acknowledged that their continued presence violates the City's goal of providing a four-foot wide pedestrian zone, and that similar replacement trees would not be permitted at the site for this reason. The continued presence of the trees creates hazardous conditions for pedestrians. The sidewalk has already required significant repair and replacement and has begun to

7 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 2 crack again since repairs were made in Also, the trees block one of only three street lights on the block, creating safety concerns for the Owner and the neighbors. The trees are encroaching on the Property and causing damage to the roof, and are dropping leaves year round that accumulate on the Property. The street sweeper fails to clean these leaves and they are a nuisance to the Owner and adjacent neighbors. The continued presence of the trees subjects City tax payers to incur ongoing liability and repair costs due to worsening and recurring damage to the public right of way. The Owner has proposed a feasible replacement scenario that would allow for wider pedestrian access and eliminate long-term maintenance and safety concerns. The neighbors are in support of the removal of the trees. (See letters of support from A. Background neighbors attached at Exhibit G.) The two blackwood acacia street trees at the Property are too large for their location. Their presence on the already-narrow sidewalk allows for a less than four-foot wide pedestrian through zone. (DPW Order ) The trees have extensive root systems that are too small for their tree wells and are causing cracks and fissures in the sidewalk and roadway and threatening the adjacent sewer and water lines. Their large canopies shade the sidewalk and obstruct one of only three street lights on the block, decreasing visibility in the area and encouraging vagrancy. Additionally, the trees drop leaves that accumulate on the Property and are a nuisance to maintain year round. I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

8 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 3 In San Francisco, street tree maintenance is typically the obligation of the adjacent property owner. However, the subject trees are maintained by DPW, and responsibility for these trees has not been transferred to the Owner. (DPW Order No ) Accordingly, the Owner has no authority or responsibility for the Routine or Major Maintenance of the trees and it falls on DPW to manage the trees so as to ensure not only the healthy growth of the trees, but also the public safety and welfare. DPW has permanently removed a number of large eucalyptus street trees that used to grow on Amethyst Way and has replaced several with much smaller trees, none of which is more than approximately eight feet tall. By comparison, the subject trees are over 20 feet tall. On January 23, 2015, the Owner received a letter from DPW advising that it planned to inspect and repair the sidewalk adjacent to the Property. (Exhibit B.) In May 2015, Empire Engineering and Construction ( Empire ) demolished and replaced concrete damaged by the trees adjacent to the Property, pursuant to a contract with the City of San Francisco. (See Owner's Statement of Appeal ("Appeal Letter") (March 18, 2016); attached as Exhibit C; and Arborist Report, 6/18/15 ( Arborist Report ); attached as Exhibit D.) Just seven months after this replacement work was completed, the Owner noticed that new damage was already visible to the repaired concrete as well as worsening damage to portions of the sidewalk and street that were not replaced in May (Arborist Report Addendum, 2/3/16 ( Arborist Report Addendum ); attached as Exhibit E; see photos 1-4.) I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

9 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 4 Concerned about the safety of pedestrians and the on-going maintenance the trees were requiring, the Owner filed an application for the removal of the two subject trees. DPW considered the request at a hearing on January 25, Although the Order specifically acknowledges that the sidewalk provides "limited growing room," and that additional repair work is likely to be needed in the future, the Owner's application to remove the trees was denied. (DPW Order No ) B. Tree Removal is Appropriate under the Urban Forestry Ordinance The Urban Forestry Ordinance (Department of Public Works Code, Article 16, et. seq.) regulates the removal of street trees. (San Francisco Public Works Code 806(b).) 1 The Ordinance states that among its core purposes is to reduce the public hazard, nuisance, and expense occasioned by improper tree selection, planting and maintenance; as well as to ensure that landscaping in sidewalk areas is properly constructed and maintained in order to maximize environmental benefits, protect public safety, and limit conflicts with infrastructure. ( 801(d) 1 Unless otherwise stated, all Code references herein refer to the San Francisco Public Works Code. I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

10 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 5 and (i).) As explained herein and demonstrated by the Arborist Report and Arborist Report Addendum, DPW s denial of the application to remove these trees is directly contrary to these established policies, as it allows a continuing risk of harm to public safety, a nuisance to the Owner and adjacent neighbors, and the recurring expense of sidewalk repair work. 1. The Subject Trees Endanger Public Safety and Infrastructure The subject trees are simply too large for their location. DPW conceded this fact in the Order. (DPW Order No ; "Urban Forestry Staff acknowledges that the species is a large stature tree at maturity and the six foot wide sidewalks will provide limited growing room in the future.") The photos included in the Arborist Report (see Exhibit D, photos 3-8) and in the Arborist Report Addendum (see Exhibit E, photos 1-4) depict the damage that these oversized trees have caused to the sidewalk fronting the Property. The Order states that damage to the sidewalk can be repaired in the future. This is not an acceptable long term solution. DPW has already completed one recent and presumably costly repair to the sidewalk adjacent to the Property. Even if DPW was willing to spend the money to frequently repave the damaged concrete, there will inevitably be periods of time between such repairs during which the large cracks and mounds caused by the trees extensive root systems interfere with pedestrian traffic and pose substantial hazards to public safety. Not only are the trees causing damage to the sidewalk, the root systems of the subject trees are also causing considerable damage to the curb and roadway. According to the Arborist Report Addendum, a crack in the roadbed is allowing for the entry of water and the development of new roots under the street. (Arborist Report Addendum, page 2.) The asphalt is lifted and I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

11 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 6 damaged and the concrete curb replaced by Empire in May 2015 has also been cracked and lifted by these roots. (Arborist Report Addendum, page 2, photos 3 and 4.) 2. The Subject Trees Interfere with Existing Underground Infrastructure In addition to causing dangerous cracks and mounds in the sidewalk, the root systems of the subject trees pose a substantial threat to nearby subsurface infrastructure and utility lines. The Arborist Report explains that one of the trees is only a few inches from the P-trap for the sewer line. (Arborist Report, page 2.) The report also states that the second tree is less than two feet from the water line. (Arborist Report, page 2.) Blackwood acacias are fast-growing and can reach up to 100 feet in height and can have up to a four-foot trunk diameter. The two subject trees are relatively young and can be expected to expand in size for many years to come. (Arborist Report, page 2.) Accordingly, absent DPW action, the roots of these trees will interfere with the adjacent sewer and water lines. (Arborist Report, page 2.) Root interference with the utility lines would materially affect the Owner s use and enjoyment of the Property and could be substantially more expensive for the City (and tax payers) to repair than the removal and replacement of the subject trees. 3. Trees Undesirably Limit Sidewalk Access The subject trees are young big trees that will continue to grow larger and are inappropriate for their location. In the Order, DPW affirmed that if new trees were added, a three-foot by three-foot tree basin that allows for a four-foot pedestrian through zone would be required. (DPW Order No ) These dimensions require a seven-foot wide sidewalk. (Id.) According to the Order, the width of the sidewalk adjacent to the Property is only six feet wide I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

12 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 7 and the current pedestrian through zone is less than four feet which does not meet San Francisco s goal of providing minimum four-foot wide pedestrian through zones. (Id.) In addition to the problem of width, the root damage caused to the sidewalk which Empire repaired in May 2015 and is already beginning to recur further renders the sidewalk inaccessible to pedestrians, particularly those with disabilities. In 2002, the Ninth Circuit Court of Appeals considered the City of Sacramento s responsibility to repair its aging sidewalks that had fallen into disrepair and had become uneven and hazardous, particularly to individuals with mobility limitations. The court found that the Americans with Disabilities Act requires cities to maintain the accessibility of public sidewalks for individuals with disabilities. (Barden v. City of Sacramento, 292 F. 3d 1073, 1076 (2002).) In the aftermath of the court s decision and after the U.S. Supreme Court denied the city s appeal the City of Sacramento agreed to the following settlement condition: changes of level of greater than 1/2 in., whether caused by tree roots or any other deterioration or displacement of the surface of the Pedestrian Right of Way, will be remedied by providing a ramp with an appropriate slope or by creating a level path of travel. (Donald Shoup, Putting Cities Back on Their Feet, Journal of Urban Planning and Development, pages 1-2 (September 2010); attached at Exhibit F.) This 1/2 inch threshold is reiterated in DPW Order 178,884, which states that vertical displacement and voids, cracks holes or gaps in the throughway zone that measure 1/2 inch are more are priorities for repair. (See attachment to letter at Exhibit B). DPW acknowledges in the Order that it would not allow new trees to be planted in this location due to the narrow six-foot wide sidewalk, and that at least a seven foot wide sidewalk is I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

13 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 8 necessary to provide the three-foot by three-foot tree basin that the Bureau of Urban Forestry requires. (DPW Order No ) Presumably these guidelines exist in order to provide maximum pedestrian accessibility and to prevent trees from outgrowing their tree wells and disturbing the surrounding infrastructure. If it would not be appropriate to plant new trees in this location, then it should not be acceptable to allow these trees to continue growing and further undermining the sidewalk, roadway, and accessibility of the block. As discussed below, replacement trees could be added in a manner that would create a wider and more accessible pedestrian thoroughfare. 4. The Trees are a Nuisance The Urban Forestry Ordinance states that among the purposes of the ordinance is to provide a procedure to reduce a nuisance caused by a problematic tree ( 801(d)). However, DPW s denial of the Order directly contradicts this policy. The trees adjacent to the Property are a nuisance to the Owner and the public. A sucker tree (a shoot growing off of another s tree s root that will develop into a new tree) has appeared within the landscape bed at the neighboring property at 25 Amethyst Way, and is already over 18 inches tall. (Arborist Report Addendum, page 2 and photo 5.) The trees drop large quantities of leaves and seedpods that accumulate up against the driveway and garage door at the Property and collect in the sheltered areas behind the front yard landscaping and up against the building. (Arborist Report, page 2, photos 8 and 9.) When wet, the fallen leaves become slick and pose a slipping hazard to passersby. (Owner's Statement of Appeal.) Further, the street cleaner drives I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

14 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 9 around the trees rather than clean the tree debris that has collected in the street. (Id.) This shedding and collection of debris occurs year-round and is very difficult to maintain. The large canopies of these trees are beginning to encroach on the Property. Where the branches extend over the roofline, friction with the roof is causing damage. The Owner has been advised that it does not make sense to repair the roof unless the trees are removed, because further harm to the roof could not otherwise be prevented. The extensive canopies of the subject trees also block one of only three streetlights on this street significantly shading the area and resulting in low visibility that promotes vagrancy. In fact, a sleeping bag and clothing items were recently discovered between the hedge and the house at the Property. These safety concerns caused a neighbor to add a new security light to her house in order to compensate for the light blocked by the subject trees. Such concerns are not faced by other homes on the block that are adjacent to more appropriately-sized species of street trees. I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

15 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 10 D. Replacement Trees The Owner has offered to replace the trees with a more appropriate species. Preferably, this would be accomplished by planting new trees in above-ground containers so as to eliminate the risk of future root-related damage to the sidewalk, curb, roadway, and underground utility lines. As suggested in the Arborist Report, tree containers could either be narrow enough to provide for a four-foot wide through zone, or could instead be placed behind the sidewalk on the Property itself. (Arborist Report, page 2.) Although the removal of the trees or their replacement with containers behind the property line is preferable, an alternative approach would be to replace the large blackwood acacias with a smaller breed of tree within the existing tree basins. Smaller trees with slower growth patterns would reduce the threat of serious infrastructure damage that the existing large root systems pose. In fact, DPW appears to have taken this exact approach to other large trees on the subject block. According to the Owner s Appeal Letter, and as discussed here previously, I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

16 President Honda and Commissioners San Francisco Board of Appeals April 28, 2016 Page 11 DPW has permanently removed some street trees from Amethyst Way and has replaced a number of others with smaller trees, as shown in the below photo. DPW determined in the Order that because of the narrow width of the sidewalk, there is not sufficient space available to add replacement trees in the required three-foot by three-foot wide tree basins. (DPW Order No ) DPW also found that replacement trees in above ground planters would not be permitted because the sidewalk is too narrow. (Id.) Although the Arborist Report states that replacement trees could be added in a manner that would improve existing conditions without narrowing the sidewalk through zone, it is important to note the double standard at play here. Essentially, DPW will not remove the existing trees because the site is not appropriate for trees in the first place. Given that DPW replaced other trees on the block with smaller species of trees, in tree basins that are generally the same size as those in front of the Property, and on portions of the sidewalk identical in width to the sidewalk at the Property, there is no reason why the same approach could not be taken now. I:\R&A\ \Board of Appeals\Brief Drafts\LTR - Tree Appeal Brief - D. Honda ( ).doc

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19 EXHIBIT A

20 City and County of San Francisco San Francisco Public Works GENERAL - DIRECTOR'S OFFICE City Hall, Room Dr. Carlton B. Goodlett Place, S.F., CA (415) Edwin M. Lee, Mayor Mohammed Nuru, Director DPW Order No: The Director of Public Works held a Public Hearing on Monday, January 25, 2016 commencing at 5:30 PM at City Hall, Room 416, 1 Dr. Carlton B. Goodlett Place, San Francisco, CA The hearing was to consider Order No to consider the removal of two (2) trees maintained by San Francisco Public Works with replacement of two (2) trees adjacent to the property at 33 Amethyst Way. Findings: Urban Forestry staff denied the removal of the two blackwood acacia trees (Acacia melonxylon) because the trees are still relatively young and have fair structure Urban Forestry staff acknowledges that the species is a large stature tree at maturity and the six foot wide sidewalks will provide limited growing room in the future The sidewalk was recently repaired Urban Forestry staff will not allow replacement trees to be planted because the width of the sidewalk is only 6 wide The minimum tree basin size that the Bureau of Urban Forestry will approve is a minimum 3x3 tree basin that provides a 4 wide pedestrian through zone this would require a 7 wide sidewalk The current pedestrian through zone is less than 4, which does not meet San Francisco s goal of providing a minimum 4 wide pedestrian through zone (Federal requirement is 3 ) Replacement trees in above ground planters would not be allowed because the sidewalk is too narrow The arborist for the applicant stated several concerns about the trees, such as: large stature species in narrow sidewalk; both trees are too close to existing utilities; there is less than a 4 pedestrian through zone; sidewalk has recently been repaired but damage by the tree roots will begin occurring again in the very near future; the curb is already cracked The property owner would really like to plant replacement trees The trees are currently maintained by San Francisco Public Works The trees are young and healthy and the sidewalk can be repaired in the future There does not appear to be adequate room to require or allow replacement trees to be planted Recommendation: After consideration of letters and testimonies presented at the hearing and a site visit, the San Francisco Public Works Making San Francisco a beautiful, livable, vibrant, and sustainable city.

21 recommendation is to uphold the staff decision to deny the request to remove the two acacia trees. Appeal: This Order may be appealed to the Board of Appeals within 15 days of March 4, Board of Appeals 1650 Mission, Room 304 San Francisco, CA (between Van Ness and Duboce Avenues) Phone: Fax: Regular office hours of the Board of Appeals are Monday through Friday from 8am to 5pm. Appointments may be made for filing an appeal by calling All appeals must be filed in person. For additional information on the San Francisco Board of Appeals and to view the Appeal Process Overview, please visit their website at 3/3/2016 X Mohammed Nuru Nuru, Mohammed Approver 1 Signed by: Nuru, Mohammed San Francisco Public Works Making San Francisco a beautiful, livable, vibrant, and sustainable city.

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37 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Phillip Landrum 110 Galewood Circle San Francisco, CA RE: 33 Amethyst Way San Francisco, CA Date: 6/18/15 ARBORIST REPORT Assignment Provide an inspection of two blackwood acacias (Acacia melanoxylon) street trees at 33 Amethyst Way, San Francisco. Evaluate sidewalk damage, root cutting impacts, available space, underground utility locations and the size of the trees relative to available space. Evaluate tree size and age class with space required in the future. Provide an Arborist Report of findings to accompany a tree removal permit application. Provide a recommendation for new trees at this site. Background These two street trees were planted by and are maintained by the City of San Francisco, Department of Public Works ( the City ). The City has recently marked the sidewalk and curb for repairs, and Empire Engineering and Construction ( Empire ) has demolished and replaced the damaged concrete as part of a City contract. Just prior to the concrete demolition by Empire, the owner of the property, Mr. Landrum, requested that I take a look at these trees. We met at the site on 5/20/15 at which time I took photos 1 through 8. Mr. Landrum took photos 9 through 12 during the sidewalk repair work, and he provided me with photos 13 and 14 to illustrate replacement tree planters. These photos are numbered in red and are attached to this report. Findings These trees are young mature blackwood acacia trees that currently appear normal and healthy when looking at the foliage. The limb structure of each tree is reasonably symmetrical and balanced. This species will become very large and is fast growing. These are still young trees. The size of these trees is far too big for a site like this. The root system is heavily confined within very small tree wells. The trunks and buttress roots are immediately adjacent to the curb and underground utility vaults, all of which have been displaced by structural roots of the tree. As seen in photos 9 through 12, it appears Contractor s License # Page 1 of 4

38 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax that Empire cut these roots to make concrete repairs, thereby rendering the trees hazardous. If Empire did not cut these roots, then the damage will recur within a year. Tree 1 is just a few inches from the P-trap for the sewer line. Tree 2 is less than 2 feet from the water line. Since these are young mature trees they may or may not have caused utility conflicts at present, but the sewer line particularly is at an unacceptably close proximity to tree 1. The sidewalk width is inadequate and does not comply with the Americans with Disabilities Act (ADA). There is no way that a wheelchair could travel down this sidewalk, either before or after repairs have been made. At this point these are young mature trees that are still fast growing and will expand in size rapidly for the next many years to come. Given the narrow sidewalk width and close proximity of the trees to the sidewalk, damage will recur very quickly and the sidewalk will not be safely passable by either the disabled or ordinary pedestrians. These trees do not conform to either the General Requirements or Minimum Restrictions, as identified in DPW Order 178,631 Planting Guidelines. Given that the trees are a large species in small planting sites, the narrow width of the sidewalk that is illegal, and the illegal close proximity of the trees to underground utilities, it is my opinion that these trees should be removed and replaced. Replacement Trees The replacement trees should not be placed in the ground due to utilities and the narrow sidewalk. Rather than traditional street tree plantings, I agree with the suggestion by the owner and recommend that containers be used for new trees. Please refer to photos 13 and 14. These containers can be narrow enough to allow an ADA accessible sidewalk, or could be placed behind the sidewalk. In either case they could be regulated as replacement trees for the trees to be removed. If behind the sidewalk they could be designated as Significant Trees and therefore regulated. If container plantings are not approved, it is my opinion that new street trees should not be planted at this site. There is concern by some about containers requiring more water than trees planted in the ground. It is true that trees in containers must be irrigated, but containers are available that capture and recycle water through a siphon tube. If there are drought concerns, these water recycling systems should be considered. Contractor s License # Page 2 of 4

39 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Assumptions and Limiting Conditions 1. Any legal description provided to the consultant is assumed to be correct. Title and ownership of all property considered are assumed to be good and marketable. No responsibility is assumed for matters legal in character. Any and all property is appraised or evaluated as though free and clear, under responsible ownership and competent management. 2. It is assumed that any property is not in violation of any applicable codes, ordinances, statutes or other governmental regulations. 3. Care has been taken to obtain all information from reliable sources. All data has been verified insofar as possible. The consultant can neither guarantee nor be responsible for the accuracy of information provided by others. 4. Various diagrams, sketches and photographs in this report are intended as visual aids and are not to scale, unless specifically stated as such on the drawing. These communication tools in no way substitute for nor should be construed as surveys, architectural or engineering drawings. 5. Loss or alteration of any part of this report invalidates the entire report. 6. Possession of this report or a copy thereof does not imply right of publication or use for any purpose by any other than the person to whom it is addressed, without the prior written or verbal consent of the consultant. 7. This report is confidential and to be distributed only to the individual or entity to whom it is addressed. Any or all of the contents of this report may be conveyed to another party only with the express prior written or verbal consent of the consultant. Such limitations apply to the original report, a copy, facsimile, scanned image or digital version thereof. 8. This report represents the opinion of the consultant. In no way is the consultant s fee contingent upon a stipulated result, the occurrence of a subsequent event, nor upon any finding to be reported. 9. The consultant shall not be required to give testimony or to attend court by reason of this report unless subsequent contractual arrangements are made, including payment of an additional fee for such services as described in the fee schedule, an agreement or a contract. 10. Information contained in this report reflects observations made only to those items described and only reflects the condition of those items at the time of the site visit. Furthermore, the inspection is limited to visual examination of items and elements at the site, unless expressly stated otherwise. There is no expressed or implied warranty or guarantee that problems or deficiencies of the plants or property inspected may not arise in the future. Disclosure Statement Arborists are tree specialists who use their education, knowledge, training, and experience to examine trees, recommend measures to enhance the beauty and health of trees, and attempt to reduce the risk of living near trees. Clients may choose to accept or disregard the recommendations of the arborist, or to seek additional advice. Arborists cannot detect every condition that could possibly lead to the structural failure of a tree. Trees are living organisms that fail in ways we do not fully understand. Conditions are often hidden within trees and below ground. Arborists cannot guarantee that a tree will be healthy or safe under all circumstances, or for a specified period of time. Likewise, remedial treatments, like any medicine, cannot be guaranteed. Contractor s License # Page 3 of 4

40 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Treatment, pruning, and removal of trees may involve considerations beyond the scope of the arborist s services such as property boundaries, property ownership, site lines, disputes between neighbors, and other issues. An arborist cannot take such considerations into account unless complete and accurate information is disclosed to the arborist. An arborist should then be expected to reasonably rely upon the completeness and accuracy of the information provided. Trees can be managed, but they cannot be controlled. To live near trees is to accept some degree of risk. The only way to eliminate all risk associated with trees is to eliminate the trees. Certification of Performance I, Roy C. Leggitt, III, Certify: That we have inspected the trees and/or property evaluated in this report. We have stated findings accurately, insofar as the limitations of the Assignment and within the extent and context identified by this report; That we have no current or prospective interest in the vegetation or any real estate that is the subject of this report, and have no personal interest or bias with respect to the parties involved; That the analysis, opinions and conclusions stated herein are original and are based on current scientific procedures and facts and according to commonly accepted arboricultural practices; That no significant professional assistance was provided, except as indicated by the inclusion of another professional report within this report; That compensation is not contingent upon the reporting of a predetermined conclusion that favors the cause of the client or any other party. I am a member in good standing of the American Society of Consulting Arborists and a member and Certified Arborist with the International Society of Arboriculture. I have attained professional training in all areas of knowledge asserted through this report by completion of a Bachelor of Science degree in Plant Science, by routinely attending pertinent professional conferences and by reading current research from professional journals, books and other media. I have rendered professional services in a full time capacity in the field of horticulture and arboriculture for more than 25 years. Signed: Date: 6/18/15 Contractor s License # Page 4 of 4

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55 City and County of San Francisco San Francisco Department of Public Works Office of the Deputy Director & City Engineer, Fuad Sweiss Bureau of Street Use and Mapping Urban Forestry Permits and Policy Group 1155 Market Street, 3 rd Floor San Francisco, CA (415) Edwin M. Lee, Mayor Mohammed Nuru, Director Tree Removal Permitting Process Jerry Sanguinetti, Manager Street trees are important assets of neighborhoods and commercial districts. The citizens of San Francisco value street trees and have mandated their protection. Significant trees are trees that are within 10 of the public right-ofway and also meet one of the following size requirements: 20 or greater in height, 15 or greater canopy width, 12 or greater diameter of trunk measured at 4.5 above grade. Therefore, a permit is required before any street tree or significant tree alive, dead or hazardous can be removed. Tree removal without a permit is a violation of Article 16 of the Public Works code and penalties may apply. The following is required to process your application 1. Return the completed and signed application form including number and name of the replacement tree species. 2. Non-refundable fee: 1-3 trees (Disease, hazard or sidewalk damage related removal) : $ trees (Construction or development) : $ trees : $ trees : $1365 Check payable to: CCSF DPW BUF Mail to: City and County of San Francisco, PO Box 7461, San Francisco, CA OTHER DOCUMENTS THAT MAY BE REQUIRED 1. Include proof of damage caused by trees such as paid invoices for repair. Although a tree has caused sidewalk, sewer or other property damage, removal may not be required, and a permit may not be granted. 2. If the removal is related to new construction, include site plans accurately showing tree locations as well as your building permit number. REMOVAL PROCESS 1. A Department of Public of Works inspector will evaluate the trees for removal. 2. If the Department recommends the tree be removed, it will be posted for period up to 30 days. If objections to the removal are received, the removal will be scheduled for public hearing. 3. If the Department denies the removal, the applicant can request the case be scheduled for a public hearing. 4. After the hearing, a hearing officer will make a recommendation to the DPW Director, who in turn will issue a final decision. The Director s decision may be appealed to the Board of Appeals. FURTHER RECOMMENDATIONS 1. Have an International Society of Arboriculture Certified Arborist evaluate the tree and provide a written report. Certified Arborists can be found in the Yellow Pages under the heading Tree Services or the ISA website at 2. Use a licensed and insured certified arborist for any tree work. For each tree removed, a replacement tree planting is required. For more information, please call the Bureau of Urban Forestry at or visit our site San Francisco Department of Public Works Making San Francisco a beautiful, livable, vibrant, and sustainable city.

56 KEEP THESE INSTRUCTIONS FOR YOUR REFERENCE Summary of DPW Order 178,631 Planting Guidelines It is recommended that the Permittee carry adequate liability insurance for his/her own protection and in order to carry the foregoing provisions into effect. GENERAL REQUIREMENTS 1. Trees to be planted must be from a minimum 15-gallon sized nursery container. 2. Depending on the sidewalk width, the maximum new basin size is 4ft. by 4ft; the minimum is 2 ½ ft. by 3ft. 3. In no case shall the new street tree result in an obstructed sidewalk width of less than 48 inches. 4. Raised structures around the tree basin can present a tripping hazard and are not allowed. 5. A basin cover, perimeter of red brick, or other approved material is encouraged in the tree basin in the following cases: a. The sidewalk is less than 7ft. wide b. Bus Zones when a planting is allowed c. Areas with heavy pedestrian traffic d. Sidewalk with a grade of 10% or greater e. Tree basins adjacent to parking meters MINIMUM RESTRICTIONS Trees may not planted within : 1. 25ft. in front of a traffic signal ft. of the property line on the approach to an intersection and 5ft of the property line on the exit from an intersection as the traffic flows IF a corner property 3. 9, 15, and 21 feet of a street light for small, medium, and large mature size trees respectively 4. 6ft of a utility pole 5. 3ft of a parking sign unless the Department of Parking and Traffic agree to relocate the sign 6. 3ft of a gas line, water line, electrical conduit and sidewalk furniture 7. 5ft of a sewer line 8. 5ft of a fire hydrant 9. 10ft from a fire escape 10. A bus zone when the sidewalk is less than or equal to 15ft 11. A restricted parking Blue Zone ft of existing trees if both are small mature sized trees The property owner shall check for the presence of underground utilities in the area of proposed planting and shall be solely responsible in avoiding interference with or damage to electric or telephone conduits, sewers and other utilities. Check for the location of your underground gas and utility services by calling Underground Service Alert (USA) at KEEP THESE INSTRUCTIONS FOR YOUR REFERENCE I agree to hold harmless the City and County of San Francisco, its agents, officers and employees from any damage or injury caused by reason of planting, placements, maintenance, or removal of the planter or plants. The owner or owners of the respective property shall be solely liable for any damages. Signature : Date : (Check One) Property Owner Owner s Agent Revised 7/16/14

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58 EXHIBIT E

59 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Phillip Landrum 110 Galewood Circle San Francisco, CA RE: 33 Amethyst Way San Francisco, CA Date: 2/3/16 ARBORIST REPORT Addendum to the 6/18/15 report Assignment Review and comment on 9 photographs of two blackwood acacias (Acacia melanoxylon) street trees at 33 Amethyst Way, San Francisco. Provide an Arborist Report of findings to accompany a tree removal permit application. Background The trees were planted by and are maintained by the City of San Francisco, Department of Public Works ( the City ). Associated sidewalk and curb repairs are the responsibility of the City, and they have hired Empire Engineering and Construction ( Empire ) to demolish and replace the damaged concrete as part of a City contract. Summary The repairs have been partially completed by Empire around the end of May Extensive root-related damage was not repaired, and new concrete from that time is already being damaged. The attached photos show these issues, as well as suckering and debris that are caused by these trees. This species is too large for the site such that damage cannot be repaired properly. The trees are a nuisance, are inappropriate for this site and should be removed. Findings Nine photos are attached, each with a number to reference my comments below. Arrows have been added to point out root damage that is still present, or that has recurred since the recent concrete work was done. Photo 1: This area of sidewalk has been lifted and damaged by roots of the west tree in the 7 months since repairs were done. Contractor s License # Page 1 of 4

60 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Photo 2: A close-up of the same area in Photo 1. The red arrow points to the corner of the new concrete. This concrete was placed against an old curb that was pushed aside by the roots of the tree, just behind the camera. The root or roots that did this damage are still present, and the green and blue arrows point to new cracks. Photo 3: The roots of this tree have undermined the curb and roadway. It appears that a crack in the roadbed is allowing water to get in and roots are therefore developing. Not only is the asphalt lifted and damaged, the new concrete curb is also cracked and lifted by these roots. Photo 4: This is a close-up of Photo 3 showing the lifted asphalt and the cracked and lifted new curb. Photo 5: Suckers from the street trees are developing in the landscape bed. A sucker is a shoot growing off of a root that will develop into a new tree. This is characteristic of many weedy species of trees. Photo 6: The suckers are 16 feet away. This shows the extensiveness of the root systems of these acacias. This entire front yard area is undermined by these roots and will be damaged as the trees become larger. Also, note the dead leaves and seed pods that are nearly impossible to clean out of the gravel mulch. Photo 7: The taller sucker is already over 18 inches tall. Photo 8: Large quantities of leaves and seedpods shed from these trees and tend to accumulate up against the driveway and garage door. Photo 9: Wind patterns cause leaves and seedpods to collect in the sheltered areas behind front yard landscaping and up against the building. This debris is constant and is very difficult to maintain due to the high quantity and year-round problem. Contractor s License # Page 2 of 4

61 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Assumptions and Limiting Conditions 1. Any legal description provided to the consultant is assumed to be correct. Title and ownership of all property considered are assumed to be good and marketable. No responsibility is assumed for matters legal in character. Any and all property is appraised or evaluated as though free and clear, under responsible ownership and competent management. 2. It is assumed that any property is not in violation of any applicable codes, ordinances, statutes or other governmental regulations. 3. Care has been taken to obtain all information from reliable sources. All data has been verified insofar as possible. The consultant can neither guarantee nor be responsible for the accuracy of information provided by others. 4. Various diagrams, sketches and photographs in this report are intended as visual aids and are not to scale, unless specifically stated as such on the drawing. These communication tools in no way substitute for nor should be construed as surveys, architectural or engineering drawings. 5. Loss or alteration of any part of this report invalidates the entire report. 6. Possession of this report or a copy thereof does not imply right of publication or use for any purpose by any other than the person to whom it is addressed, without the prior written or verbal consent of the consultant. 7. This report is confidential and to be distributed only to the individual or entity to whom it is addressed. Any or all of the contents of this report may be conveyed to another party only with the express prior written or verbal consent of the consultant. Such limitations apply to the original report, a copy, facsimile, scanned image or digital version thereof. 8. This report represents the opinion of the consultant. In no way is the consultant s fee contingent upon a stipulated result, the occurrence of a subsequent event, nor upon any finding to be reported. 9. The consultant shall not be required to give testimony or to attend court by reason of this report unless subsequent contractual arrangements are made, including payment of an additional fee for such services as described in the fee schedule, an agreement or a contract. 10. Information contained in this report reflects observations made only to those items described and only reflects the condition of those items at the time of the site visit. Furthermore, the inspection is limited to visual examination of items and elements at the site, unless expressly stated otherwise. There is no expressed or implied warranty or guarantee that problems or deficiencies of the plants or property inspected may not arise in the future. Disclosure Statement Arborists are tree specialists who use their education, knowledge, training, and experience to examine trees, recommend measures to enhance the beauty and health of trees, and attempt to reduce the risk of living near trees. Clients may choose to accept or disregard the recommendations of the arborist, or to seek additional advice. Arborists cannot detect every condition that could possibly lead to the structural failure of a tree. Trees are living organisms that fail in ways we do not fully understand. Conditions are often hidden within trees and below ground. Arborists cannot guarantee that a tree will be healthy or safe under all circumstances, or for a specified period of time. Likewise, remedial treatments, like any medicine, cannot be guaranteed. Contractor s License # Page 3 of 4

62 Tree Management Experts Consulting Arborists 3109 Sacramento Street San Francisco, CA Member, American Society of Consulting Arborists Certified Arborists, Tree Risk Assessment Qualified cell/voic office fax Treatment, pruning, and removal of trees may involve considerations beyond the scope of the arborist s services such as property boundaries, property ownership, site lines, disputes between neighbors, and other issues. An arborist cannot take such considerations into account unless complete and accurate information is disclosed to the arborist. An arborist should then be expected to reasonably rely upon the completeness and accuracy of the information provided. Trees can be managed, but they cannot be controlled. To live near trees is to accept some degree of risk. The only way to eliminate all risk associated with trees is to eliminate the trees. Certification of Performance I, Roy C. Leggitt, III, Certify: That we have inspected the trees and/or property evaluated in this report. We have stated findings accurately, insofar as the limitations of the Assignment and within the extent and context identified by this report; That we have no current or prospective interest in the vegetation or any real estate that is the subject of this report, and have no personal interest or bias with respect to the parties involved; That the analysis, opinions and conclusions stated herein are original and are based on current scientific procedures and facts and according to commonly accepted arboricultural practices; That no significant professional assistance was provided, except as indicated by the inclusion of another professional report within this report; That compensation is not contingent upon the reporting of a predetermined conclusion that favors the cause of the client or any other party. I am a member in good standing of the American Society of Consulting Arborists and a member and Certified Arborist with the International Society of Arboriculture. I have attained professional training in all areas of knowledge asserted through this report by completion of a Bachelor of Science degree in Plant Science, by routinely attending pertinent professional conferences and by reading current research from professional journals, books and other media. I have rendered professional services in a full time capacity in the field of horticulture and arboriculture for more than 25 years. Signed: Date: 2/3/16 Contractor s License # Page 4 of 4

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72 EXHIBIT F

73 Putting Cities Back on Their Feet Donald Shoup 1 Abstract: Broken sidewalks have become an important legal issue since 2002 when the United States Court of Appeals for the Ninth Circuit ruled that the Americans with Disabilities Act ADA applies to sidewalks. As one way to comply with the ADA, cities can require property owners to repair any broken sidewalk fronting their property before they sell the property. Before any real estate is sold, the city inspects the sidewalk fronting the property. If the sidewalk is in good condition, the city does not require the owner to do anything. If the sidewalk is broken, however, the city requires the owner to repair it before selling the property. Analysis of sales data shows that if Los Angeles had adopted a point-of-sale program in 1995, about half of the city s 4,600 miles of broken sidewalks would have been repaired by A walkable city needs walkable sidewalks. Requiring sidewalk repairs when property is sold can help put cities back on their feet. DOI: / ASCE UP CE Database subject headings: Infrastructure; Sidewalks; Handicapped persons; Pedestrians; Urban areas. Author keywords: Infrastructure; Sidewalks; Americans with Disabilities Act; Point-of-sale. Introduction Public infrastructure often decays invisibly and we are shocked when a bridge collapses or a water main breaks. Sidewalks, however, decay right before our eyes and under our feet. Sometimes we even trip over a cracked sidewalk and end up in the emergency room. In Los Angeles, for example, 4,600 miles of the city s 10,750 miles of sidewalks need some degree of repair at an estimated cost of $1.2 billion. Fig. 1 shows examples of these broken sidewalks. The city repaired only 67 miles of broken sidewalks per year between 2000 and Even if the sidewalks miraculously stopped breaking, at the current pace it would take 69 years to repair all the existing damage. Broken sidewalks make the city less walkable and they especially impede people with disabilities. This impediment has become an important legal issue since the United States Court of Appeals for the Ninth Circuit ruled in 2002 in Barden v. City of Sacramento that the Americans with Disabilities Act ADA applies to city sidewalks. In 2003 the United States Supreme Court declined to overturn the Ninth Circuit ruling. anything a public entity does and any normal function of a governmental entity, including sidewalks Class Action Settlement Agreement, 3. Americans with Disabilities Act In Barden v. City of Sacramento, a class-action suit filed on behalf of persons with disabilities, Joan Barden and others alleged that Sacramento violated the ADA by allowing its sidewalks to fall into disrepair. The Ninth Circuit Court ruled that the ADA covers 1 Dept. of Urban Planning, Univ. of California Los Angeles, Los Angeles, CA Note. This manuscript was submitted on September 18, 2008; approved on December 2, 2009; published online on December 5, Discussion period open until February 1, 2011; separate discussions must be submitted for individual papers. This paper is part of the Journal of Urban Planning and Development, Vol. 136, No. 3, September 1, ASCE, ISSN /2010/ /$ Fig. 1. Broken sidewalks in Los Angeles JOURNAL OF URBAN PLANNING AND DEVELOPMENT ASCE / SEPTEMBER 2010 / 225

74 After the U.S. Supreme Court denied Sacramento s appeal, the city agreed to dedicate 20% of its annual transportation budget for up to 30 years to make public sidewalks accessible. Specifically, the settlement requires the following: changes of level of greater than 1/2 in., whether caused by tree roots or any other deterioration or displacement of the surface of the Pedestrian Right of Way, will be remedied by providing a ramp with an appropriate slope or by creating a level path of travel Class Action Settlement Agreement, 13. The plaintiffs in Barden v. City of Sacramento had asked the city to adopt a transition plan to remove barriers to persons with disabilities. Section of the regulations implementing the ADA requires all cities to have a transition plan that sets forth the steps they will take to make public facilities accessible. At a minimum, the plan shall 1 identify physical obstacles in the public entity s facilities that limit the accessibility of its programs or activities to individuals with disabilities, 2 describe in detail the methods that will be used to make the facilities accessible, and 3 specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period. Inaccessible sidewalks have also led to other ADA lawsuits. For example, Kohrman and Nepveu 2008, 5 discussed a classaction lawsuit against the California Department of Transportation. They reported that one plaintiff frequently has been required to ride in the street in his wheelchair just inches alongside speeding vehicular traffic because of inadequate or absent curb cuts, ramps, or sidewalks. Because many curb cuts and slopes do not comply with the law, he is often in danger of tipping over on dangerously slanted rights of way. This complaint accurately describes the problem with many sidewalks in Los Angeles and other cities. Who Should Pay to Repair Sidewalks? The California Streets and Highways Code states that property owners are liable for repairing sidewalks: The owners of lots or portions of lots fronting on any portion of a public street shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience. When any portion of the sidewalk is out of repair or pending reconstruction and in condition to endanger persons or property or in condition to interfere with the public convenience in the use of such sidewalk, the superintendent of streets shall notify the owner or person in possession of the property fronting on that portion of such sidewalk so out of repair to repair the sidewalk Sections 5610 and This code requires cities to notify property owners whose sidewalks are damaged. If the owner does not repair the sidewalk, the city makes the repairs and bills the owner. Property owners in other states are also responsible for repairing sidewalks. In 2008, the Los Angeles Bureau of Street Services surveyed 82 cities in 45 states to learn who is responsible for the cost of sidewalk repairs. The survey found that property owners pay for repairs in 33 cities, the city pays in 11 cities, and the city and the property owners share the cost in 38 cities. The survey also found that inspections triggered the requirements to repair sidewalks in 44 cities, complaints in 43 cities, applications for a building permit in two cities, and sales of properties in one city. Some cities reported more than one trigger. Los Angeles followed the state code until 1973 when federal funds became available to repair sidewalks at no cost to property owners. Because of this federal funding, the City Council adopted an exception to its previous policy of requiring property owners to pay for repairs. Section of the Los Angeles Municipal Code, adopted in 1973, states, Preventive measures and repairs or reconstruction to curbs, driveways, or sidewalks required as the result of tree root growth shall be repaired by the Board at no cost to the adjoining property owner. In effect, the city assumed responsibility for most sidewalk repairs. Three years later the federal funds ran out, leaving the city with no sidewalk repair program. Then, in 1978, California voters adopted Proposition 13 to limit property tax rates and public funds became even scarcer. By 1980, when the city attempted to reinstate the previous policy of requiring property owners to pay for sidewalk repairs, the tax revolt was in full swing. Property owners objected to the new mandate for sidewalk repairs, so the city halted citations. Because the city was short of money, it began to make only temporary asphalt patches to cracked sidewalks or more often did nothing at all. In 1998, after allowing its sidewalks to deteriorate for more than two decades, Los Angeles placed Proposition JJ on the ballot. This proposition would have authorized $769 million in bonds to repair the sidewalks. To repay the debt, property taxes would have been increased for 20 years even on property with no sidewalks or with sidewalks in good condition. Opponents argued that a citywide tax did not guarantee the sidewalks in front of their own homes would ever be repaired, and they had a point. Most residents would have waited years before the city fixed their sidewalks. On election day, only 43% of the voters supported Proposition JJ far short of the two-thirds majority California requires to approve municipal bonds. In 2000, the city began to repair sidewalks using general revenue. The total cost to repair the accumulated damage had ballooned to $1.2 billion, but the budget for repairs averaged only $10.8 million per year up to This slow pace leads to a question: Is there another way to pay for sidewalk repairs? Requiring Sidewalk Repairs at the Point of Sale Although Los Angeles voters have rejected a tax to repair sidewalks, the city can adopt a new strategy that already works well in other cities: require owners to repair broken sidewalks before they sell their property. How does this strategy work? Before any sale, the city inspects the sidewalk fronting the property. If the sidewalk is damaged, the owner must fix it before completing the sale. In Piedmont, California, for example, Sections of the municipal code state, New sidewalks and/or driveways must be constructed if required by the superintendent of streets in conjunction with the sale of real property. Piedmont requires repairs if the vertical displacement of a break in the sidewalk is 3/4 of 1 in. or less and reconstruction if the vertical displacement exceeds 3/4 of 1 in. Pasadena, California, has a similar at-sale sidewalk repair program. Point-of-sale programs like those in Piedmont and Pasadena have several advantages. First, the city does not require owners to pay for or do anything until they sell their property. The sale then provides the cash to pay for required repairs. Moreover, sellers fix only the sidewalk fronting their own property, so they can see exactly where their money is going. Second, sidewalk repairs are gradual but inevitable because about half of all properties are sold at least once every decade. 226 / JOURNAL OF URBAN PLANNING AND DEVELOPMENT ASCE / SEPTEMBER 2010

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