CITY OF FAIRFIELD TREE AND SIDEWALK TASK FORCE 2019-2020 DAT
E:
T
O:
FR
OM:
RE:
Tuesday, July 21, 2020
Honorable City Council Members
Tree and Sidewalk Task Force
Report and Recommendations to Council Regarding Trees and Sidewalks
COMMISSIONED
A
s a result of the February 10, 2018 City Council Workshop, staff was directed to establish a City of Fairfield Tree and Sidewalk Maintenance and Liability Task Force pursuant to Resolution Number 2018-71.
TASK FORCE MEMBERS
Th
e City conducted public outreach seeking members of the community to participate in the Tree and Sidewalk T ask F orce. T he City of F airfield residents who were selected and sworn in by Council are as follows:
1) M
ike Giles, Chairperson
2) Scott Tepley, Co- chairperson
3) Rochelle Cooks
4) Carol Chervinko
R
andall Carlson was an original member but r esigned before we convened. His understanding of our actual mission and time commitment was different than he originally believed.
MISSION STATEMENT
T
he miss ion of the Fairfield Tree and Sidewalk Task F orce is to identify ways the City can minimize its risks associated with maintaining trees and sidewalks. The City is to be commended for it s generosity in maintaining and also accepting responsibility for tree a nd sidewalk damages. This Task F orce recognizes and underscores the importance of trees and tree maintenance in the City. The public and businesses in Fairfield value its trees because of the many benefits they provide to the environment, community and t he need to preserve trees for future generations. The Task Force also recognizes the importance of public safety and responsibilities of maintaining sidewalks that allow residents, businesses, and visitors to use them without injury. The Task Force, therefore, is offering proposals for changes to the City's tree and sidewalk ordinances.
2 | Page
ISSUES FRAMED
T
rees
F
or decades, City staff has taken full responsibility of nearly every tree fronting a City street, including private yard trees. The City has v astly grown over time and the City tree program has decreased from three crews down to one since the recession . There are thousands of additional trees due to new development and thousands of trees clearly on private property which the City has maintained due to current landscape/tree easements. Moreover, the Tree Maintenance division is unable to manage irrigation practices of trees on private ly owned land and residents who place rain resistant surfaces such as concrete, artificial turf, decomposed granite or decorative rock around trees significantly affects tree health. The current tree ordinance, City maintenance program and budget are no longer sustainable.
Si
dewalks
M
any sidewalks within the city are in a state of disrepair due to age, poor construction quality, deferred maintenance, tree and vegetation roots, etc. The severity of the disrepair varies from neighborhood to neighborhood. There are approximately 750 miles of sidewalk to maintain . The 1961 City ordinance that places the maintenance responsibility onto adjacent landowners is not enforced.
We r
ecommend the C ity conduct an educational program that informs the public of the 1961 ordinance and clarifies the responsibility of the property owner. Since the City has never followed its own ordinance, there should be financial assistance or softening program for lower income residents who are unable to afford necessary repairs before there are any changes made to the current program.
I
nformation concerning other gov ernmental jurisdictions faced with the same dilemma can be located on the City of San Rafael’s website:
h
ttps://www.cityofsanrafael.org/sidewalk-faqs/
STRUCTURE AND SESSIONS
P
ublic Works administered the program with assistance from Risk Management, which included 4-trainings and informational meetings, 2-webinars and 2-strategic planning sessions.
S
eptember 24, 2019 Tree, Trees and More Trees Webinar presented by David Clovis T
he Task Force listened to a webinar presented by David Clovis who is the former General Manager of the California Joint Powers Risk Management Authority (CJPRMA) of which Fairfield is a member entity. Council may recall he was one of the presenters at the February 10, 3 | Page
2018 workshop alongside Public Works Director Julie Lucido, attorney Greg Fox and Risk Manager Chris Carmona.
T
he webinar included the following:
• E
xposure to Tree Related Incidents and Theories of Liability • The Basic Elements of a Tree Program
• Case History of Tree Incidents
• Creating a Plan of Action to Implement a Program
E
xhibit A attached hereto is the handout for the webinar. T he webinar is also available at the following web address:
https://vimeopro.com/dkfsolutions/csrma-webinars/video/362336611 September 25, 2019 Fairfield 101 Finance and Risk Management T
he Task Force conducted a joint session with Fairfield 101 on the topics of Finance and Risk Management. Finance Director, Emily Combs, discussed the City’s budget and processes with creating and adopting a 2-year budget. She spoke on General Fund reserves, restricted funds and the one-time versus ongoing funds in both operating and capital budgets. Mrs. Combs discussed how one-time funds are often deployed to address City Council priorities such as the Heart of Fairfield project and the City’s tree and sidewalk liability.
We al
so heard from Risk Manag er, Chris Carmona, on the City’s liability program. The City’s current issues relating to trees are not just a Fairfield concern. The City of Fairfield is in a liability pool consisting of 96 other public entities. The City of Fairfield’s losses do not just affect our City, but all the other members of the pool. In other words, the current issues relating to trees are not just a Fairfield concern. Mr. Carmona also described the City’s sidewalk ordinance 16.14 adopted in 1961, which states:
16.14 D
uty of Property Owner as to Maintenance of Sidewalk
I
t shall be unlawful for any person owning any building, lot or premises in the city, fronting on any portion of an improved street or way, where a sidewalk is laid, to allow any portion of such sidewalk in front of such building, lot or premises to be out of repair, or to become, be or remain dangerous to the users thereof for any reason. Such person must at all times keep each such sidewalk in such condition that it will not endanger persons or property passing thereon, will not interfere with public convenience in the use thereof, or be or remain an obstruction or impediment to normal, customary and usual pedestrian or vehicular traffic. (Ord. No. 61- 5, §
2.)
T
o the best of Mr. Carmona’s knowledge, the 1961 ordinance has never been instituted or imposed onto property owners, and he believes the reason is a long history of City staff “going above and beyond for its citizens.”
4 | Page
T
he Task Force reviewed ordinances from the following entities:
• T
he City of Fairfield
• The City of Vallejo
• The City of San Jose
• The City of Grass Valley
• The City of Lodi
• The City of Sacramento
• The City of Redding
• The City of San Rafael
• The City of Vacaville
• The City of Dixon
• The State of California Streets and Highway Code §5600, et. seq O
ctober 10, 2019 Focus on Sidewalks, Streets, Curbs and Gutters The T
ask Force heard from public works staff member Daniel Camara who stated that 13 employees are responsible for over 750 miles of sidewalk, street, curb and gutter with an annual operating budget of $50,000. The division also has an operating budget of $30,000 for outside contractors to inspect and provide saw cutting to feasible areas.
A
ttorneys Mark Hazelwood and Kim berly Y. Chin from t he San Francisco law firm of Allen, Glaessner, Hazelwood & Werth made an excellent 1 ½ hour presentation outlining the applicable laws, verdicts, other municipal agency programs/ordinances and what other agencies have done to address the same issues facing Fairfield. They discussed enacting an ordinance and the politics that comes with it. The sharing of responsibility is important because homeowners are in the best position to identify problems early to remediate issues quickly at a minimal cost. Fairfield’s current ordinance conditions property owners to repair any defects. The attorneys’ legal recommendation is to follow the law and enforce the ordinance. Conversely, if the City desires to take full ownership, then the ordinance should be amended so that the law and maintenance practices are consistent. Lawyers will look to the ordinances during litigation, and the law and City practices must align. Their top recommendation is to follow what most other municipalities are doing and amend the ordinance to include liability. This will shift some of the liability onto the property owners’ insurance carrier for any injury that may result from a sidewalk defect.
J
oseph Ortega from Precision Concrete spent approximately 30 minutes with a well- presented power point describing the services they perform for the City of Fairfield and other agencies of similar size and population in the Bay Area. He covered several different municipal programs, costs and the processes Precision Concrete renders in maintainin g sidewalks. The work they conducted in San Rafael is remarkable. T hey split the City into zones and mapped the City for inspection and repair over a 2-year period before San Rafael enacted their ordinance fully shifting the responsibility of repair and liability onto the property owner. Precision’s Power Point is unavailable due to proprietary concerns; however, if asked Mr. Ortega would return for a Council presentation.
5 | Page
O
ctober 24, 2019 Focus on Trees
A
ttorney Kimberly Y. Chin returned and provided a detailed presentation on Tree Liability and Best Practices. She covered laws including inverse condemnation, attorney fee exposures and most importantly, the fact th at municipal governments should not be providing services to private property (trees). She also provided sample tree ordinances and the significance of defining trees and the responsibility of maintenance for each.
P
ublic Works employees Mike Gray and Gary Sponsler educated us on their processes and procedures. Their division went from three tree crews down to one during the 2008 recession. They maintain almost every tree fronting a City street, including yard trees due to the City’s 1953 Municipal Code which states:
21.1 O
wnership of Trees on City Easements
All trees planted on easements of the city are owned by and are under the control of the city. (Ord. No. 12 (1953), § 1.)
G
ray summarized that since the 2008 recession, the Tree Maintenance Division staffing levels have not increased despite hundreds of new homes and trees. When dealing w ith yard trees, they have no control over the irrigation practices or covering the base of the trees with impermeable surfaces such as concrete. Both scenarios significantly affect a tree’s health and longevity.
M
r. Carmona and Ms. Chin have worked for a vast number of California governments and have never experienced a public entity maintaining yard trees on private property. Mr. Carmona elaborated that public entities are unable to own property on private land without a contractual agreement. Furthermore, it is his opinion the City’s practices are in violation of the California Constitution and possibly a gift of public funds. When handling tree liability claims, he often hears arguments from the claimants that the yard trees in question are “City trees”. Property owners also argue they are restricted from maintain ing or removing t rees without City permission. Mr.
Carmona explained the City’s zoning regulations, as discussed below, require trees to be placed on private property. Similar to any other structure requiring a building permit, such as a roof or other home revitalization project, qualified individuals or contractors should only maintain trees.
C
ommunity Development employee Meily Sheehan spoke on development practices concerning trees and the intent of trees to beautify, increase property values, enhance community pride, preserve wildlife habitat, p rovide protection from summer heat, reduce air and noise pollution, reduce soil erosion and increase the quality of life in the community. Ms. Sheehan also discuss ed zoning regulations that require the following:
6 | Page
City of Fairfield Zoning Regulations-Trees
Low Density 1 tree per every 30-35 feet
Medium Denstiy 1 tree per every 25 feet
High Density (Multi-family) 1 tree per every 25 feet
Commercial 1 tree per every 30 feet
Industrial 1 tree per every 20 feet
O
ctober 31, 2019 Sidewalks and Streets: Implementing an Effective Program to Manage Exposure Webinar presented by David Clovis
T
he webinar included the following:
• E
xposure to Street, Sidewalk and Trail Related Incidents and Theories of Law • The Basic Elements of a Sidewalk/Streets Program
• Discussion of Sidewalk/Streets Incidents
• Creating a Plan of Action to Implement a Program
E
xhibit D attached hereto is the handout for the webinar. T he webinar is also available at the following web address:
https://vimeopro.com/dkfsolutions/csrma-webinars/video/370338226 November 7, 2019 Strategic Planning
T
he Task Force members reviewed all the information presented during the sessions and webinars.
We segregated the two issues of trees and sidewalks then highly prioritized trees as the leading issue.
Trees
Priority Level Issue Recommendation
1 Ordinance Update the City’s 1953 Ordinance to define trees, locations, and responsibility maintenance for each.
2 Finance Request the City to develop a financial plan to address the ordinance.
3 Maintenance Plan Develop a schedule.
4 Tree List Update the City tree list. As well, the selection and 7 | Page
planting of new trees from an approved tree list must
be enforced. If new trees are planted that are not on
the approved tree list, there must be consequences
i.e. replanting, fines, etc.
Sidewalks
Priority Level Issue Recommendation
1 Ordinance Update the City’s 1961 Ordinance.
2 Finance Request the City to develop a financial plan to address the ordinance.
3 Maintenance Plan Develop a schedule.
ANAL
YSIS
F
or decades, the City has provided exemplary services to the residents of Fairfield with respect to trees and sidewalks. When the City originally planted trees and instituted the maintenance program, there were no plans for aging infrastructure. Trees are now at the end of their life and sidewalks in older areas are in disrepair leaving the City with unforeseen risks, hazards and financial strain.
A
great deal of in formation on trees and sidewalks is available . W e recommend that Council consider bifurcating the two issue s due to the ir complexities with trees being the first order of business.
RE
COMMENDATIONS
Th
e Task Force has provided our recommendations below. Most importantly, we recommend the City no longer maintain private trees and sidewalks.
S
econdly, the Task Force strongly recommends amending both the tree and sidewalk ordinances .
Before doing so, a strong public outreach program should be conducted and a plan developed to provide financial assistance for lower income citizens prior to any changes to current programs.
The campaign should include Town Hall meetings to receive public input so the public is well informed and has the opportunity to be a part of the process and changes . The tree and sidewalk issues in a public outreach campaign may be difficult to conduct simultaneously if public participation is significant. In that case, we strongly recommend the two issues be bifurcated 8 | Page
TREES
The City must update the tree ordinance to define the trees and responsibilities for each type of tree and their locations.
Program Description
T1
Staffing
During the 2008 recession, the City eliminated two of three person tree crews. As an option, t he City could choose to fund an additional tree crew to assist with residential trees for 5 years until the maintenance of private trees gradually becomes the responsibility of the owners.
T2
2 year program
The City could establish a program to cost share the maintenan ce and removal of private trees for two years before turning over the responsibilities to the property owner.
SIDEWALKS
to include Street, Gutter and Curb
City must consider updating the current ordinance to have the adjacent property owners share in liability. Currently, the ordinance places the maintenance responsibly onto the property owner. Property owners are in the best position to identify defects.
Program Description
S1
Fully Fund
The City could increase the contractor budget to have a contractor address each defect for two years through an application and eligibility process.
S2
Cost Share
The City Council could establish a cost-sharing program of 50% with the property owner based on budgetary funds dedicated to curb, gutter, street and sidewalk improvements. This program should not exceed 2 years.
9 | Page
S
UMMARY
M
ost important to the Task Force is the safety of our community f ollowed by t he beauty and financial impacts related to trees and sidewalks. Secondly, our liability partnership with 96 other entities should be a strong consideration. We are highly recommending that the City update the tree and sidewalk ordinances to provide clear definitions. T he plan should reduce the financial burden to property owners with assistance from the City. We encourage the City to conduct public forums and outreach to educate and receive input from the public to develop mutually sustainable programs.
CL
OSING
T
he Task Force sincerely appreciates Council for addressing these very important issues concerning our community. We wish you the best of luck in the work ahead.