The Coastal Post - September 1999

Plant A Tree, Go To Jail

By Terri Alvillar

Is Fairfax, California the kind of town that would throw someone in jail for planting a tree anywhere in Town, even on private property? If it's the wrong kind of tree, that's what could happen if the proposed new tree ordinance is approved by the Town Council in the next few months.

According to the document, unanimously approved by the Planning Commission on July 15, 1999, it would be a misdemeanor to plant a tree from the "undesirable tree" list on any property in town, public or private. "Undesirable" trees listed are: various species of Eucalyptus and Acacia, Monterey Pine and Cypress, Lombardy Poplar, all species of Juniper, and Coast Redwood.

Of course, some of these "undesirables" are indigenous to the Fairfax planning area and while some may be unsuitable for street trees, most people likely would find it offensive and intrusive to be told which kind of tree is unsuitable for planting on private property. Good-bye, Japanese maple.

Of the approximately 70,000 species of trees known to man, only 18 have made it to the proposed "desirable tree" list. Of those 18, 15 are not native to Marin. The ordinance only lists seven oaks as "protected" native trees. One of these is the Engelmann Oak which is not native to Marin at all but is native to southwestern California. Marin County's recently revised tree ordinance protects 36 native species. No riparian species are listed in Fairfax's proposed ordinance even though its streams are Steelhead habitat. California Bay is not listed, although it was identified in a 1998 county wildlife survey as being Northern Spotted Owl habitat within the Fairfax planning area.

Unbelievably, properly pruning a Fairfax street tree without a permit would constitute a public nuisance under the ordinance. By what stretch of the imagination this conclusion was reached is truly a puzzle. Whether the proposed ordinance were to be enforced criminally or civilly, the so-called "nuisance" would have to correspond to the magnitude and the character of unreasonableness and injuriousness to constitute a "nuisance" under law (California Penal Code 370. & 370. and California Civil Code 3479. & 3480.) Properly pruning a street tree without a permit could not be considered "injurious to health or indecent or offensive to the senses of an entire community at the same time," could it? It seems the opposite would be true.

According to the ordinance, if a tree on private property is removed without a permit, the town can place a lien or a special assessment on the parcel for all abatement costs, including tree replanting, restoration of tree canopy and landscaping coverage to its original condition, as well as all administrative costs. No dollar amounts are mentioned in the ordinance; however, the Town of San Anselmo just amended their Municipal Code regarding administrative penalties for nuisance abatement and they are a maximum of $1,000 per day to a total maximum of $100,000.

The purpose of this ordinance is stated to be "that the reasonable regulation of the removal, alteration, and planting of certain trees is necessary to promote the public health, safety and general welfare of the community." However, it contains a multitude of unreasonable regulations, such as: 1) Inventory and locate all trees on the subject property, 2) Provide notice to all owners of property; as listed on the current County Assessment rolls, within 300 feet of the subject property; and interested parties, identified by the Planning Director, which may be significantly affected; 3) For every tree removed, three trees of the same or similar species, shall be planted. An alternative to this is paying a "mitigation fee" determined by the Planning Director; 4) Trimming any tree, shrub or plant without first obtaining a permit, whether on public or private property, is a nuisance.

The ordinance does not state whether or not it would be illegal to SELL an "undesirable tree" in Town but why not be consistent?

And did I say that the planning commission approval of this ordinance was unanimous? One commissioner was absent, Linda Bolt-the same commissioner who, earlier that day, was having her towering, soon to be "protected," Oak trees cut without Town permits.

The first reading of the ordinance (No. 679, repealing present Town Code Chapter 12.44 and replacing Chapter 8.28) before the Town Council will occur on September 7 at the Fairfax Women's Club, 46 Park Road.

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