Appeal of RALF BENDUSKI - City and County of San Francisco

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BRIAN P. MULRY

[email protected]

DIRECT DIAL: (415) 875-4358

ATTORNEYS AT LAW

275 BATTERY STREET, SUITE 2000 SAN FRANCISCO, CA 94111

PHONE: (415) 986-5900 FAX: (415) 986-8054

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February 4, 2016

VIA ELECTRONIC MAIL & HAND-DELIVERY

Honorable Members of the Board of Appeals Board of Appeals City and County of San Francisco 1650 Mission Street, Room 304 San Francisco, CA 94103 Email: [email protected]

Re: The Board of Appeals, City and County of San Francisco In re: St. Francis Homes Association’s Replacement of Eleven (11) Privately Maintained Trees DUF Order No.: 184254 DPW Order No.: 184339 Bd. of Appeals No.: 15-197

Dear Honorable Members of the San Francisco Board of Appeals:

Our offices represent Respondent St. Francis Homes Association (“St. Francis

HOA”) in opposing Appellant Peter Benduski’s appeal of Order No: 184339 (“Order”) of

the Department of Public Works (“DPW”), which recommended “to uphold the Bureau

of Urban Forestry’s decision [to] . . . allow all eleven (11) trees to be removed and

replaced.” (Emphasis Added). The Order stemmed from a November 23, 2015 hearing

before the DPW to consider St. Francis HOA’s application.

We respectfully submit this Brief in response to Appellant’s Brief, and kindly

request that the Board uphold the two previous decisions of the Bureau of Forestry

City and County of San Francisco Board of Appeals Honorable Members of the Board of Appeals February 4, 2016 Page 2

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(“BUF”) and Department of Public Works (“DPW”) in approving St. Francis HOA’s

application to remove 11 non-native eucalyptus trees that currently pose a public safety

hazard to its residents and visitors. For legal and practical reasons, removal of these non-

native trees needs to occur as soon as possible because they pose a public safety hazard to

residents and visitors. Such immediacy is underscored by the fact we are experiencing

severe weather impacting already weakened, mature trees that have been identified as

public safety hazards by two certified arborists.

BACKGROUND

The BUF’s recommendation, and DPW’s Order upholding it, followed St. Francis

HOA’s application to remove and replace 11 trees along Yerba Buena Avenue between

Santa Clara Avenue & San Pablo Avenue. St. Francis HOA’s tree removal effort is an

important part of its new landscaping plan for Yerba Buena Avenue, which St. Francis

HOA developed in conjunction with several meetings with its members, some of whom

have submitted letters in support of the landscaping plan and tree removal. (Please refer

to Exhibit A, attached hereto, for St. Francis HOA member support letters.)

The landscaping plan serves to address several of its immediate and long range

necessities for Yerba Buena Avenue, which include:

(1) First and Foremost, Public Safety. St. Francis HOA must act

swiftly to protect the safety of its resident homeowners,

pedestrians and visitors, and vehicles along Yerba Buena


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Avenue from any foreseeable harm from landscape or

streetscape hazards, namely falling trees;

(2) Street and Landscape Beautification. St. Francis HOA must

improve the street, sidewalks and landscape around Yerba

Buena Avenue, where many of its residents live and which

attracts countless pedestrians and vehicles on any given day; and

(3) Long Range Planning for the HOA. St. Francis HOA recognizes

the need to plan for the long range natural health and vitality of

this well-travelled pedestrian and vehicular corridor.

St. Francis HOA has a legitimate interest, and obligation, in preserving public

safety of residents and visitors of the HOA, improving the aesthetic quality of Yerba

Buena Avenue, and ensuring that the street and landscape will mature and thrive well into

the future. St. Francis HOA is so invested in its landscaping plan that it has committed to

making approximately Two Hundred and Fifty Thousand Dollars ($250,000) in

landscaping improvements, which includes planting twenty (20) Acer rubrum “October

Glory” Red Maple trees (“Red Maple trees”) to replace the 11 non-native eucalyptus

trees that will be removed because they have been found by both the HOA’s and the

City’s certified arborists to pose a public safety hazard. Moreover, as part of its

landscaping plan, St. Francis HOA has committed to installing an all new water-efficient

irrigation system throughout the entire street and drought tolerant understory planting that

will serve to complement the addition of the 20 Red Maple trees.


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DISCUSSION

1. Appellant’s Request that the Tree Removal Be Delayed Until the

Spring Is Not Feasible Due to the Fact that St. Francis HOA and the

City Have Received Expert Opinions of Certified Arborists Steve

Ormond and City BUF Inspector Steve Keller Stating that the 11 Trees

Pose a Public Safety Hazard.

Currently, there are forty-six (46) trees on Yerba Buena Avenue. Of those 46

trees, St. Francis HOA is proposing that 11 non-native eucalyptus trees be removed due

to the health of the trees and the public safety risk they pose to homeowners and

pedestrians. According to St. Francis HOA’s certified arborist, Steve Ormond, and the

City BUF’s Inspector, Steve Keller, these 11 non-native trees present a public safety

hazard that must be removed before one of these trees causes significant property

damage and/or personal injury or death.

(a) City BUF Division Inspector Steven Keller’s Opinion that the 11

Trees to Be Removed Pose a Public Safety Hazard.

At the November 23, 2015 DPW hearing, Mr. Keller made a formal power point

presentation in support of his and BUF’s recommendation that the 11 failed eucalyptus

trees be removed due to public safety. (Please refer to Exhibit B, attached hereto, for

Mr. Keller’s power point presentation.) The DPW cited Mr. Keller’s and BUF’s expert

opinions in its decision to recommend removal of the 11 non-native trees. In Order No.

184339, the DPW states that the BUF found that “. . . 10 of the 11 trees approved for


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removal are showing irreversible signs of decline . . . [which] include thinning canopies,

dying branches, trunk rot, and branch rot.” DPW further relied upon Mr. Keller’s opinion

that “[t]he declining trees will likely not recover, and the best practice moving forward,

from a public safety standpoint, and a succession planning standpoint, is to remove and

replace the trees now.” (Emphasis added.) (Please refer to Exhibit C, attached hereto,

for the City’s DPW Order No: 184339, at p. 1.)

In its Order, the DPW also relied on the fact that Mr. Keller and BUF staff also

concluded that the one tree scheduled for removal that is not showing “irreversible signs

of decline” also poses a public safety risk. According to the DPW Order, Keller opined

that “the largest tree at []34 [sic] Yerba Buena is not showing signs of decline, but has a

large and actively decaying trunk wound. The wound occurred when the tree suffered a

large branch failure in the past. The tree currently has significant weight leaning over the

road, and towards the adjacent homes. When BUF’s staff inspected the decaying

location the wood was found to be soft, and internal wood sounded hollow when tested

with a mallet.” (Emphasis Added.)

The DPW correctly relied upon the expert testimony of Mr. Keller, the City’s own

BUF inspector and certified arborist, to determine that the 11 non-native trees proposed

to be removed should be removed because they pose a public safety hazard. With regard

to matters of public safety, any delay in addressing them would be inexcusable and would

result in a ticking time bomb.


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(b) Steve Ormond’s Report Also Concluded that the 11 Non-native

Trees to be Removed Pose a Public Safety Hazard.

The DPW Order also correctly relied upon the expert opinion of St. Francis

HOA’s own certified arborist, Steve Ormond, who submitted tree risk assessments for

each of the 11 non-native trees St. Francis HOA plans to remove as part of its

landscaping plan.1 (Please refer to Exhibit D, attached hereto, for Mr. Ormond’s tree

risk assessments and photographs for each tree.)

As you can see from Mr. Ormond’s tree risk assessments, each tree is located at or

near a pedestrian sidewalk and within reach of front yards and homes. These trees’ close

proximity to residential properties and pedestrian sidewalks virtually assures that

someone will be harmed if a tree, or a significant part of it, falls. As a result, on page 2

of each of Mr. Ormond’s 11 tree risk assessments, his recommendation is to “Remove for

safety.” As a practical and legal matter, St. Francis HOA now has knowledge that these

trees pose a public safety risk in the opinion of two certified arborists. If St. Francis

HOA did not take action and if someone were to be harmed, arguably St. Francis HOA

would be subject to legal liability for negligence. More importantly, however, an HOA

member or guest would suffer physical injury or death.

1 Mr. Ormond is a certified arborist with the following qualifications: Certified Member ISA (International Society of Arborists) Certification No. WE-3231A (1996); ISA Qualified Tree Risk Assessor (2014), ASCA (American Society of Consulting Arborists) Academy graduate (2010).


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Given that the St. Francis HOA now has expert knowledge of the public safety

risk each of these trees pose, it has no choice but to take action in removing them before

someone is hurt or killed from a falling tree. St. Francis HOA simply requests that the

Board uphold DPW Order No: 184339 permitting it to follow the recommendation of its

certified arborist and Mr. Keller, the City’s BUF inspector, in replacing these trees with

20 large Red Maple trees of at least 24-inch box nursery stock.

(c) The Public Safety Risk Posed By a Decaying Eucalyptus Tree

Translated to Tragic Reality When Just this Week a San Jose

Man Was Killed By a Falling Eucalyptus Tree.

In San Jose, a man was killed when a 70-foot tall eucalyptus tree fell on him at a

park. This tragic case reminds us of the fatal risk that an unsafe, mature eucalyptus tree

poses to public safety if it is not promptly removed when it shows signs of instability,

significant weakening by drought, or decay. (Please refer to Exhibit E for a true and

correct copy of the AP news report detailing the story.)

Moreover, it appears from the news story that the failed eucalyptus tree killed the

man because of a “weather or drought-related” reason. According to the news report,

“[c]ity officials are investigating and say the cause could be weather or drought related.”

In his appeal, Appellant relies on his own certified arborist’s opinion, claiming these trees

“show symptoms of drought stress which includes thinner crown canopies, smaller

leaves, bark exfoliation, and some die back of smaller branches,” in an attempt to

minimize the extent of their failure and to encourage that they be given time to recover.


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(Appellant’s Appeal, p. 2). However, as this latest news story shows, drought-weakened

trees do pose a public hazard that will result in death. Given this, even Appellant’s own

appeal admits that the 11 non-native trees slated for removal (four of which he agrees

should be removed) have been weakened or compromised due to drought.

Thus, Appellant’s own arborist opinion, coupled with two other expert opinions,

provide ample support for St. Francis HOA exercising its discretion and concern for

public safety in removing the compromised non-native eucalyptus trees before someone

is hurt or killed.

(2) Appellant’s Concern for the Preservation of the Impressive Streetscape

Has Already Been Addressed Through St. Francis HOA’s Several

Member Meetings and Expert Assistance in Preparing Its Landscaping

Plan.

Even if the Board puts the above public safety issues aside, which it should not for

obvious legal and practical reasons, the fact remains that the St. Francis HOA members

want this landscaping plan and tree removal for their community. This landscaping plan

has been carefully vetted by HOA members, its Board, and its hired experts through the

course of several public meetings. Ultimately, the Board and its Park and Parkway

Committee voted, in their discretion, to approve the landscaping plan and tree removal.

In his appeal, Appellant is the sole St. Francis HOA member opposing the tree

removal and landscaping plan. With respect to the landscaping plan, Appellant requests

that the DPW Order be clarified to specify the following: “The replacement tree must be


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the same species or a eucalyptus species of large stature, evergreen, similar appearance

and structure to the existing eucalyptus trees to be removed . . . .” (Appellant’s appeal, p.

4). Here, St. Francis HOA Board, in its discretion and after HOA member and expert

input, has chosen to replace the 11 non-native trees it will be removing with 20 high-

quality Red Maple trees, which is a type of tree that has the potential to grow to

approximately the same stature of a mature eucalyptus, and is aesthetically more pleasing

according to the feedback it received HOA members who participated in the landscape

plan development process. Further, as a matter of law, the California Supreme Court has

found that Boards of community associations such as St. Francis HOA have discretion in

determining issues of maintenance and repair of their common areas. (Lamden v. La Jolla

Shores Clubdominium Homeowners Assn., (1999) 21 Cal.4th 249 (“Lamden”).)

CONCLUSION

In sum, the 11 eucalyptus trees that St. Francis HOA proposes to remove pose a

public safety hazard according to the St. Francis HOA’s certified arborist and the City’s

own expert at BUF. Given this knowledge, for legal and practical reasons, St. Francis

HOA must act to protect the public safety of its residents and visitors. Further, St.

Francis HOA’s effort to replace 11 failing eucalyptus trees with 20 higher quality and

more aesthetically pleasing Red Maple trees will represent a benefit to the St. Francis

Wood community, not only in potentially saving a life, but also by virtue of the aesthetic

improvements these 20 trees will bring to the long-range planning of Yerba Buena

Avenue.


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INDEX OF EXHIBITS

Exhibit Source Document

A. St. Francis HOA St. Francis HOA resident/member support letters

B. Steven Keller City BUF Division Inspector

Mr. Steven Keller’s power point presentation(re October 26, 2015 Public Works Tree Hearing)

C. City & County of San Francisco City’s DPW Order No: 184339

D. Steve Ormond Certified Arborists

Mr. Ormond’s “Basic Tree Risk Assessments”(with photographs for each tree)

E. KNTV-TV San Jose, CA (AP)

News report Article detailing the story“Man killed…when tree falls on him at park”

Appeal of RALF BENDUSKI - City and County of San Francisco

Documents

Transcript of Appeal of RALF BENDUSKI - City and County of San Francisco