Planning Commission Takes On Trees
In Which: We highlight some lovely native trees. A Regulatory body pushes back against regulation. And I explain why housing and tree cover are not necessarily opposed.
Tree Preservation Ordinance
This item previously went before the City Council—a bit out of order from usual. But now the Planning Commission has a chance to weigh in on how the City preserves trees. It’s also the first meeting for the newest Planning Commissioner Jeffrey Haman.
What’s This Really About?
The tree preservation ordinance is trying to address the issue of urban tree cover, which is a well-known indicator of inequality. The fewer old-growth trees in a neighborhood, the poorer that neighborhood will be. As the Staff Report points out, old growth trees improve property values and have a number of environmental benefits.
Trees provide shade, which is necessary in our warming climate—it’s supposed to be 100 degrees today on the first of October. It means needing less air conditioning, which is expensive to install and many older homes lack. It means cleaner air, more vibrant local wildlife, and they’re just plain nice to look at.
Unfortunately, development usually means removing some trees—higher density development, especially, doesn’t usually have room one one lot to plant bigger trees. With the current system, they make up for it with shrubs and small trees that don’t replace the canopy the old tree provided. So the City is hoping to create an in-lieu fee, just like it does with affordable housing, to allow developers to pay to have trees planted elsewhere.
Crucially, there’re also trees in all those single-family home backyards. Right now, although trees in front yards fall under the City’s tree preservation ordinance, backyard trees don’t. That means people could be cutting down massive old-growth natives without replacing them and we lose that canopy and habitat forever. The City wants to change that and ensure that any removed native backyard trees get a permit and are replaced.
Crucially, the City has a very specific list of what counts as a native. As I’ve noted before, California Coast Redwoods are about as native to Hayward as the Joshua Tree. Staff created a short list of trees that are covered:
Big leaf maple (Acer macrophyllum)
California buckeye (Aesculus californica)
Pacific madrone (Arbutus menziesii)
California sycamore (Platanus racemosa)
Coast live oak (Quercus agrifolia)
Canyon live oak (Quercus chrysolepis)
Blue oak (Quercus douglassii)
Oregon white oak (Quercus garryana)
California black oak (Quercus kelloggii)
Valley oak (Quercus lobata)
Interior live oak (Quercus wislizenii)
California bay (Umbellularia californica)
California Black Walnut (Juglans hindsii)
If there’s a tree that is not on this list, a homeowner could remove it without a permit. No harm, no foul.
Just like with the City Council, the Planning Commission was asked to answer a few very specific questions. Obviously, there’s a lot to talk about with trees in the urban environment—I could write about it all day—but the tree preservation ordinance has a very specific scope.
Planning Commission Collides With Scope of Project
Commissioner Goodbody started by asking about in-lieu fees and found out that the fee would be separate from other fees, but it the cost would depend on the on-site analysis. Right now, all removed trees have to be assessed by an arborist and appraised. Then, if they’re removed, the developer has to pay to replace the value (in dollars) of the tree. But with the in-lieu fee, the developer would instead pay a fee—maybe a little higher than the dollar value of the tree—to allow the City to plant a tree elsewhere.
Goodbody also asked how it compares to the Park Impact Fee that developers already pay. The difference is that the tree in-lieu fee will only be triggered if a tree is removed. That money could be used, according to Staff, to reforest the areas of the City with less canopy coverage. Goodbody asked if there were any restrictions on planting locations, but the City hasn’t determined that yet.
Commissioner Franco-Clausen then changed the direction of the conversation toward tree maintenance—a subject this ordinance doesn’t cover. “There’s a lot of dead and sick trees that have not been addressed in the three years that I’ve been here,” she said. “Do we do that review and say all right well here’s the area where we need to start? I think that’s very important if we’re creating like a ‘Hey, let’s care about the trees’ let’s care about all of them.” Though it was unclear, exactly, what she had in mind.
Commissioner Franco-Clausen then discussed the cost burden for removal on working families—though the sliding scale would make it cheaper to get a permit than it is now. “When people move into homes or neighborhoods and those native trees are already there, you know that they did not plant, they are not responsible or they’re on sidewalk land then you put that on—that onus on people who may not afford to take care of something that they didn’t know that was going to be such a process.” She seemed to imply that homeowners would be burdened by needing a permit to remove a tree on their land, similar to how they need a permit to perform other work on their property.
Commissioner Patterson also seemed concerned about how much an individual homeowner would have to pay to remove a covered tree, even after City Staff said that the fee would be reduced from its current cost of $485. She asked if solar panels would count as a replacement tree. Staff explained that solar panels are currently counted as replacing tree canopy, but want to change that because it’s about more than shade. Staff also highlighted that for residential users, solar panels and trees don’t often conflict because panels are on roofs, which usually still get a lot of sunlight.
Commissioner Haman asked if the new ordinance would help the City meet Governor Newsom’s alleged goal of 30% canopy coverage by 2030. Staff explained that most cities don’t do canopy mitigation and that there are very few cities, if any, that would meet the 30% goal. This also appears to be a statewide metric, not 30% coverage for every city. He then asked about infrastructure—drainage, leaf removal, and the like—and staff had to remind him that Public Works handles that, not Planning, and that it will be figured out after the ordinance is developed.
Chair Lowe was concerned that the in-lieu fees might discourage development, and Staff once again explained that it wouldn’t be a new fee. It changes how the money is spent—on canopy cover as opposed to things like permeable pavers. Staff explained that there might be a small increase for the in-lieu fees because of the Staff cost that comes with finding a new place to plant a tree, but it’s also supposed to encourage developers to work around trees instead of removing them.
Commissioner Meyers agreed in his written comment and took issue with the in-lieu fees. “We, as a city, often want more homes. To do this, builders might not have physical room to accommodate the updated tree requirements, so we would then be penalizing them with the higher costs to place them elsewhere. We appear to be ‘getting’ them on both sides.” Though Staff seemed unconcerned that the fees would slow any kind of development.
Thankfully, a Staff anecdote helped illustrate the problem. “I’ve had three projects,” one Staff member said, “where rear yard single family homes with large-scale oak trees—150 year old trees—have been removed. We have no course of action to request more trees be planted or anything like that… So we’re basically losing that canopy without having an opportunity to replace it at all, and this is what we really want [to address].”
City Staff—and the City Council—are making the argument that canopy cover is a public good that should be managed collectively. We all benefit from more native trees, more canopy cover, and more native wildlife. Unfortunately, the idea of private property—especially the hyper-charged individualistic American kind—seemed too strong for some Planning Commissioners to overcome.
Government Regulatory Body Doesn’t Like Governments Regulating
Commissioner Franco-Clausen started the discussion with fee equity before shifting to concerns about private property rights. “I don’t think I’m actually comfortable with someone telling me what I can do in my backyard,” she said. Though the City already regulates what can and can’t be done in residential areas, including back yards.
“To me it’s very private,” Commissioner Franco-Clausen said, “because the City is not helping me maintain these trees.” She said that she has multiple fruit trees in her backyard that she inherited from the previous owner. However she seemed unaware that they would be exempt from the ordinance because the list only includes 13 native tree species.
She also returned to the maintenance costs—despite that not being a part of the ordinance—and lamented the mess made by the street trees in her neighborhood. However, the trees in her Sleepy Hollow neighborhood are mostly crepe myrtles, magnolias, and other non-natives—not to mention the fact that those are in the front and already covered by the existing Tree Preservation Ordinance. Staff also explained that non-natives are usually messier, require more maintenance, and would be exempt from the ordinance anyway—if they are in the back yard.
But most of the Planning Commission agreed that the City should stay out of their backyard business. Commissioner Goodbody said, “I want to be mindful of our overreach into private property.” She pitched an idea of paying homeowners to keep trees as opposed to penalizing them for removing them, though she did not elaborate on where this money would come from or how such a program would be managed.
Commissioner Meyers wrote his comments in advance of the meeting—he wasn’t there in person—and also disagreed with expanding the ordinance into rear yards. He put on his Landlord hat and seemed to stand against any and all fees. “It’s difficult for [landlords] to keep up with a constant increase in city taxes, county taxes, income taxes, property taxes, improvement costs and fees, contractor charges, school bond measures, and so much more. All while being governed to limit the rent of these homes.” It should be noted that the typical rent of a single family home far surpasses the mortgage, taxes, and annual fees charged to landlords—that’s how they make their money. Also, the permit fee would, as Staff said multiple times, only be applied when a native tree was removed in a back yard.
Commissioner Patterson also agreed, saying she did not support expanding the ordinance to cover native trees in rear yards. “Even though,” she said, “I do want to protect native trees.” She did support mitigation requirements for loss of tree canopy, but wanted some kind of cost support for the maintenance of the tree. She also supported the idea of in-lieu fees so long as there was a priority to plant trees in low-coverage areas—presumably with her prior maintenance coverage, but it was unclear.
But Commissioner Haman, formerly of the Keep Hayward Clean and Green Task Force, seemed to understand what was necessary. “If the goal is to fill the city with trees, then regulating backyards I guess would have to be a must,” he said. “Because you would need those trees in the backyards to be able to meet that percentage.”
Commissioner Lowe also seemed to have a change of heart. “I, too, am very concerned if we are allowing developers to cut down 100-year old redwood trees that we need for canopy but also which have many other benefits to our community.” As noted above, however, redwoods would not be included in the list as their native range is exclusively the Northern California Coast. But the Staff anecdote swayed her. “As long as there are very specific guidelines with very specific exceptions, I would support [extending the ordinance into rear yards],” she said.
Commissioner Haman also wanted to include “native adaptive” trees in the ordinance. “There are certainly trees that we could bring into the city that would be beneficial,” he said. Though so-called adaptive trees typically do not have the biodiversity benefit that comes with true native trees—Coast Live Oak, for example, is a host plant for 270 native butterfly species. Despite this, Haman said, “I would like to see the protection of all trees.”
Higher density, by definition, frees up land elsewhere, especially with the Bay Area’s shrinking population. Housing and the environment do not have to be at odds—that’s a choice.
What Happens Now?
Thankfully, no votes were cast this time around—given comments, it likely would have failed. But it’s now up to City Staff to take that feedback—along with Council’s Feedback—and craft the actual language of the ordinance. It will then come back for another reading