The council's July 26 decision could have cost Ittai Bareket and Nadya McCann $42,500 for the loss of one blue gum eucalyptus and four Monterey cypress trees at their home on West Maple Way. But after hearing Mr. Bareket's story, a unanimous council reduced the penalty to the appraised value of the trees, $11,074, and suspended the fine pending completion of a replanting scheme at the couple's expense.
Councilwoman Deborah Gordon was absent and Councilman Dave Tanner, after expressing opposition to suspending the fine, agreed with the majority.
Three weeks earlier, on July 12, the council reduced a $72,500 fine to $5,000 for Patrol Road resident Gregory Wimmer for the felling of seven bay laurels, which can carry sudden oak death (SOD) spores, and one buckeye. In that case, the fine reflected the penalty for cutting down the buckeye. The council let the bay laurels slide, given the circumstances, including the SOD risk.
Woodside's code specifies a fine of $5,000 for the first "significant" tree, $7,500 for the second, and $10,000 for each one after that. A faster growing native tree becomes significant when it measures more than 9.5 inches in diameter at 4 feet above the ground. For non-native trees like the eucalyptus and Monterey cypress, the standard is 11.5 inches.
Cutting down any significant tree, whether native or not, requires a $60 permit from Town Hall, rumors to the contrary notwithstanding, Assistant Town Manager Kevin Bryant told the council.
In both of the July cases, the contractors did not go to Town Hall to pick up a permit before beginning work, and in both cases, the town would likely have issued a permit, given the circumstances, staff said.
In this latest case, the arborist's report, after the fact, implies that the cypresses were probably diseased and dangerous, a claim the contractor made explicitly in pitching the offer to cut the trees, Mr. Bareket said.
In both cases, the homeowners have had difficulty following up with contractors after learning of the code violation and its consequences.
Mr. Wimmer told the council that he had reminded the contractor three times about getting a permit. Mr. Bareket said the contractor told him repeatedly that he did not need a permit to cut down non-native trees. That contractor even showed him a statement to that effect on town letterhead, Mr. Bareket said. Town staff said they know of no such document.
The fax number for the tree service given to Mr. Bareket led to a wine and spirits shop in San Jose, and the tree service reportedly used another company's insurance and licensing information, according to a staff report.
Why the reticence about getting a permit, given the nominal cost and the large penalties for not having one?
Town staff issue tree-cutting permits without going to the site and inspecting the targeted trees, Mr. Bryant said. The town may require an arborist's report "if the information submitted by the applicant is insufficient to determine the health of the significant trees or any danger the significant trees may pose," he added.
In October 2009, the council fined Dr. Eric and Jacquie Weiss $10,000, reduced from $92,500, for cutting down 10 heritage oaks without first obtaining a permit. In that case, Dr. Weiss said he had been mistaken about the minimum diameter that made an oak tree significant.
Too many of these cases involve people not knowing the rules, Councilman Peter Mason said at the July 26 meeting. Mr. Mason then wondered aloud about ways of reminding residents, perhaps via the town's website, of the need to obtain a permit before cutting a large tree.
During public comment, neighbors spoke in support of leniency for Mr. Bareket and Ms. McCann, and of the prevalence of the notion that a permit is not required to cut down non-native trees.
One commonality in all three cases: the penalty per tree has been different every time.
The council struggled with a desire to be consistent while enforcing the ordinance.
"We have yet another instance where a property owner has relied on a company (for advice)," Mayor Ron Romines said in opening the deliberations. "What is an appropriate fine in this circumstance, or do we waive the fine altogether?"
"I'd like to see some continuity and some consistency in how we rule on it," Councilwoman Sue Boynton said.
There should be a fine, said Councilman Tanner.
"I'd much rather see the money going into replacing trees rather than going to the town," said Councilman Dave Burow. "If we're compelling the homeowner to spend money, that's (a) fine enough in my opinion."
Mr. Romines noted that Mr. Bareket and Ms. McCann had reached out to their neighbor, Barbara Hinman. In March, Ms. Hinman told the council that she was "furious" at the loss of her privacy by the tree cutting, but in May, she wrote to tell of the outreach and asked the council to be lenient to her neighbors.
"I get the sense," said Councilwoman Anne Kasten, "that a real dialog and community is being built out of this."
The council gave the couple six months to replant such that it provides screening and includes at least three trees. The council asked the town staff to review the replanting plan, particularly on the choice of plants.