Protecting Backyard Trees Still Rankles Some

In Which: Staff explains where native trees usually are, A Commissioner pushes too far on how fees are spent, and Commissioner pushes for personal responsibility on trees.

Tree Preservation Gets Final Polish

The new Tree Preservation Ordinance has been making the rounds for a while. It’s already been to the Planning Commission twice and City Council twice. On June 12, the Planning Commission made the final recommendation to send the ordinance to City Council for a vote. But not everyone on the Commission was happy about it.

What Is This?

For those who don’t know, the Tree Preservation Ordinance is a new set of rules that will make it easier for the City to keep native trees and expand the tree canopy. Having good tree coverage in a city is important for a number of things from providing shade, fighting climate change, and providing habitat for local wildlife. It’s so important, in fact, that tree cover is directly correlated to how wealthy a neighborhood is.

The City’s rules will expand existing protections to rear yards, but only for native trees. There’s a list of native trees, if you want to look it up, but Staff said—many many times—that most backyard trees aren’t native. And if it’s not native, you can remove them without issue.

If you want to remove a native tree, you’ll need a permit—which will be cheaper, depending on how many trees you want to cut down—and you’ll need to replace each tree with 2 new trees. This will allow the urban tree canopy to grow—eventually—even when a tree is removed.

And if you can’t replace the tree on your property, you can pay an in-lieu fee and the City will use the money to plant trees elsewhere around the City. Most of this stuff is going to apply to developers so average homeowners likely don’t have too much to worry about. “[Native trees] make up a small amount of trees on private property,” Staff said.

The goal for all of this is to add more trees to the City and make it a better place to live for all of us.

In Lieu Fees Cause Confusion

For those who don’t know, an In-Lieu fee is used in a lot of different places throughout the City and is a flexible way to help meet an ordinance’s objectives. For trees, a developer could pay an in-lieu fee if they wanted to remove trees on a property but didn’t have room to replace them on-site—the housing filled too much of the lot, for example. They could then pay the fee—125% of the value of the trees—so that the City could plant trees somewhere else.

Commissioner Lowe asked if there are any other local cities that use in-lieu fees for tree removal. Staff said that they didn’t know, but the consultant who helped draft the ordinance said that Hayward was unique in using the appraised value for the trees removed—though unique in a good way. Other places use a flat fee—San Mateo County just charges $3,000—but Hayward tries to add trees before resorting to a fee.

Commissioner Haman asked if the in-lieu fees were going to make enough money to do any good. Staff said that the existing in-lieu fees are around $500,000 per year, but all went to La Vista Park. According to Haman, the Maintenance Department already gets around $100,000 per year to plant trees, but Staff said that the in-lieu fees could be used to support that. “It is a daunting task to increase the canopy by 10%,” Staff said.

Haman also asked if homeowners could use the in-lieu fees, and Staff said that they could but said—again—that it only applies to native trees. The rules are trying to be flexible, but “there has to be a little bit of give and take there if you have a mature oak tree,” they said. City Staff does review each permit on a case-by-case basis and will try to find the best solution.

Chair Hardy tried to get City Staff to commit to using the in-lieu fees to help low-income households for tree removal or maintenance. She has pushed on this in the past and was still adamant about it, “The language is really non-committal around supporting low-income families,” she said.

Staff said that only the City Council gets to decide how the fees are used. “That will be presented to the Council for them to discuss,” they said. Chair Hardy pressed to get some kind of guarantee to use the money to help low-income households, but Staff interrupted her. “The spending of City resources is solely the purview of City Council,” they said.

The Planning Commission can recommend, but Staff stressed that there are a lot of competing objectives—helping low-income households with removal, maintenance, canopy expansion, and more. They also try to avoid spelling out how funds will be spent in actual law—which is what the Commission is supposed to be voting on.

Commission Goes Off-Topic

Commissioner Haman spent a lot of time asking about the Canopy Assessment, which is a separate project referenced in an Appendix, that evaluates the overall tree canopy of the City. Haman asked if the Canopy Assessment would affect the ordinance, and Staff essentially said that it won’t directly affect it.

Commissioner Haman then asked how the Assessment would determine the value of backyard trees, but Staff clarified that values would be from a Tree Survey, which only focuses on City trees. “It will not do a survey of trees on private property.” Tree values from private property will only be needed if they are being removed.

Commissioner Haman then persisted and asked if the Tree Survey information could be used to value trees for homeowners. Staff explained that all trees are different and that to get a valuation, you’d need to hire an arborist to generate a report.

Commissioner Haman then pressed to get the Tree Survey and Canopy Assessment data into the appendix, but Staff said that the report was too big. “There’s also a lot of good information [in it],” Commissioner Haman continued. Staff said that there will be a separate web page with the information when it is completed.

Meyers Pushes For Less Regulation

Commissioner Meyers opened by saying, “In general, I’m a huge tree advocate.” But he seems to have his limits. He asked for Staff to add a “not to exceed” amount to the “Time and Materials” section of the tree removal permits—these only apply to either Heritage Trees or removing 9 or more trees.

However, Staff pushed back on that. “We want to make sure we are getting and capturing our time accurately,” they said. The City had used a flat fee in the past, but lost a lot of money doing it. They said that the “time and materials” provision was the fairest way to handle those larger projects.

Commissioner Meyers then asked if there were other Cities that have laws covering rear yard trees. The Consultant said “It is a mix,” and estimated that around 15-25% of the Cities in the Bay Area cover backyard trees. “It could be an important provision if the City really wants to make sure they’re protecting as many trees as possible,” they said.

“Okay,” Commissioner Meyers said, “Still not in love with the idea.” He then said that he doesn’t like the Planning Commission—which controls how close you can build to a fence and whether or not you can build an ADU in your backyard already—going too far. “I’m not a fan of constantly infringing on some of our property rights,” Commissioner Meyers said. “Now we’re pushing it to the back yard and what’s next? I feel for the homeowners… being crushed everywhere with extra taxes.”

Staff tried to explain how replacing trees with a 2:1 ratio as opposed to the value of the tree—which can run tens of thousands of dollars for some trees—makes things more fair. Two trees can cost around $1,000, which could be less than 10% of the value of the tree. “We are trying to make it equitable for people to do,” Staff said.

But How Does It Work?

Commissioner Stevens walked through some scenarios to clarify how the fees could work. If someone illegally removes a native oak tree that’s valued at $10,000, he asked what the fine would be.

The actual fine—which is a technical nuance here—would be double the permit fee, which is $490 right now but could be less if the sliding scale is approved. You’d then have to use the appraised value to replace the tree on top of the actual fine.

But, if you pulled the permit and did everything legally, you’d just have to replace it with two smaller trees. “So it does behoove you to pull the permit,” Staff said, “because it does take away the appraised value amount.” When Staff explained what happened, Commissioner Stevens wasn’t happy. “That doesn’t seem like a disincentive,” he said.

“The fee is trivial and planting two trees is pretty trivial, too,” Commissioner Stevens said. “So I take out a 150 year old oak tree and I pay a couple thousand bucks.” Staff clarified, “At that point, no. A tree of that value would be a Heritage Tree” which is a different process.

Strange Takes For Final Comments

Commissioner Stevens continued his support for trees—sometimes even at the cost of sensible development. “This is the best thing that I’ve had the pleasure of being a part of,” he said. “As the steward of literally hundreds of mature trees in Hayward, I value them as a resource. I fully support every element of this. We have to be stewards of the land.”

However, his comments fell short of offering support to low-income residents who may have large native trees on their property. “If we buy properties with trees, we have to be able to afford it,” he said. “That’s yet another obligation of life. If you’re going to get yourself into something, you better be able to afford it.”

Commissioner Haman also supported the ordinance. “I am in favor of protecting all of our protected Hayward trees,” he said. He also pushed for using the in-lieu fees to help low-income residents pay for removal or maintenance of trees.

Chair Hardy appreciated the sliding scale and came around to rear yard protection. “Although I didn’t love it at first, I understand why we’re doing it.” However, she continued to press for support to low-income homeowners. “Support for low-income families,” she said. “That really matters to me. I don’t think that people should be in a situation where they’ve become penalized and criminalized for things they may actually want to do.”

Being forced to pay a fine is not, in this case, a criminal act. It’s an administrative fee. Chair Hardy pushed for “creative ideas” like fee reductions, waivers or payment plans for permits.

During the final vote, Commissioner Meyers offered grudging approval for the plan. “In order to not bite off my nose to spite my face due to the rear yard issues,” he said, “I will say yes.”