San Francisco Apartment Association

Planning Ahead

The Significance of the Private Property Tree Ordinance

by M. Brett Gladstone

There is a new law that could greatly affect your ability to remove trees in your own backyard, whether for new development on your lot or to improve your view. This new law creates two classes of trees: significant and landmark. It is the first time San Francisco has regulated the demolition of trees on private property.

A "significant" tree is automatically subject to the new law. A tree on private property is significant if any portion of its trunk is within 10 feet of the public right of way and if one of the following three things are true: the tree has a diameter at "breast height" of over 1 foot ("breast height" means 4.5 feet above the ground), is over 20-feet tall, or has a canopy in excess of 15 feet. The "public right of way" means the street area where cars travel. Thus, a tree with a trunk within 10 feet of the sidewalk but not within 10 feet of the street would not be subject to this ordinance.

If a tree is a "significant" tree, then it cannot be removed without obtaining a tree removal permit from the Department of Public Works. As part of DPW's decision-making process to authorize removal of a significant tree, it will consider the following factors related to the tree:

  • size, age, and species;
  • visual and aesthetic characteristics, including the tree's form and whether it is a prominent landscape feature or part of a streetscape;
  • cultural or historic characteristics, including whether the tree has significant ethnic appreciation or historical association, or whether the tree was part of a historic planting program that defines neighborhood character;
  • ecological characteristics, including whether the tree provides important wildlife habitat, is part of a group of interdependent trees, provides erosion control, or acts as a wind or sound barrier;
  • ocational characteristics, including whether the tree is in a high-traffic area or a low tree-density area, or provides shade or other public benefits;
  • whether the tree constitutes a "hazard tree"; and
  • whether the tree has been maintained properly, based on certain stated maintenance criteria.

Neighbors must be notified of a pending tree removal. If anyone objects to the tree removal, then a DPW hearing is held. An appeal can be made to the Board of Supervisors. If the department grants a tree removal permit, it requires that another street tree be planted in its place or imposes a fee, unless it has good reason to waive these requirements.

Even if your tree is not "significant," it could be a "landmark" tree. Unlike significant trees, a landmark tree is not specifically defined in the new ordinance. While the ordinance identifies the criteria to be used by the city's Urban Forestry Council in reviewing permits for removal of landmark trees (such as size, age and species), the task of coming up with specific guidelines for what makes a "landmark" tree has yet to be completed by the UFC. And even when the specific criteria are known, becoming a "landmark" tree is a long process. To become a landmark tree, a tree has to be:

nominated by the property owner or neighbor, Board of Supervisors, Planning Commission, Landmarks Board, or the city's Planning or DPW director; considered at a UFC hearing; and approved by the Board of Supervisors. A tree anywhere on a lot could be made a landmark tree, even if it is not easily viewable by the public.

A mere nomination for landmark tree status will thereafter require the tree to be treated temporarily as a landmark tree. The director of DPW also can issue an emergency order that temporarily designates a tree on private property to prevent the immediate removal of a tree. The temporary status will expire in 180 days if landmark designation has not occurred by then, unless the Board of Supervisors adopts a resolution to extend for up to 90 more days. The zoning administrator is required to identify designated landmark trees on proposed development or construction sites and to notify other city agencies regarding this.

A landmark tree can be removed, but only after a public DPW hearing. Like significant trees, the department can require tree replacement or payment of a fee to the Adopt-A-Tree Fund.

In summary, while a tree is automatically found to be "significant" if certain criteria are met, a tree cannot be deemed a "landmark" until a number of city agencies make a decision based on criteria that have yet to be adopted. The key thing to remember about this new law is that even if your trees are found to be significant or landmark trees, they can be removed; but removal is now much more difficult and requires a DPW hearing. Even if DPW gives you the right to cut a tree, neighbors who oppose this can go to the Board of Supervisors. And if you get to remove the tree, you could be required to pay the city a fee.

If a tree is designated "hazardous" by the city, it is easier to remove. Or, in the case of "manifest danger and immediate necessity," the city can require immediate removal by a property owner. A hazardous tree is a tree (or any part of it) that appears dead, dangerous, or likely to fall (even after proper maintenance activities are performed to eliminate dead or dangerous parts); obstructs or damages a street or sidewalk or other existing structure; harbors a serious disease or infestation threatening the health of other trees; interferes with vehicular or pedestrian traffic; or poses any other significant hazard or potential hazard, provided that reasonable measures have been taken to abate such a hazard, such as certain listed maintenance activities.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. M. Brett Gladstone is a partner in the San Francisco real-estate law firm of Gladstone & Associates, a firm that works exclusively in the areas of real-estate and land-use law. He can be reached at 415-434-9500. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.