you're certainly aware the shop is coming to the fillmore street and should you come to the board then, i would have been a bit more sympathetic to the tardy of notice. so i think i would only support an opening of the jurisdiction if it were done on an expedited basis because i do think you're now putting athleta at a disadvantage. they are allowed to rely on these deadlines and we're now into late july, now two months you've known about this. this is where i'm coming down with this. commissioner garcia: i agree more with president peterson than the comments made by the other commissioners, and mostly for this reason -- several reasons. one, there was no requirement for notice. it is troubling there was no address on this, like who would want to, you know, file an

appeal on this when they don't know who is going to be impacted by it, so that's trouble. but there's precedent for that. but, you know, the merits aren't there. and i agree, it may grow to be and may evolve to be formula retail, it is not currently formula retail, so there's that issue we tend to look at when we're trying to solve whether or not to grant jurisdiction. i think the thing that's most compelling to me is the fact that having missed out on this process for the l.o.d., possibly reasonably so for the appeal of the l.o.d., it's remarkable to me that this requestor did not avail themselves totally of whatever processes were still available to them. so having this -- absolutely, had i been them, gone to

planning, made sure i knew what my rights were and would have filed the d.r. but i wouldn't have said i'm going to roll the dice and hope that i prell veil -- prevail when i go before the board of appeals and then it'sness for me to filed a d.r. i think if we were to say we'll give you jurisdiction -- they're in bad shape if when the issue came before us we'd decided that the z.a. had not competed its authority, had been correct, there was no manifest justice when he issued the statements in light of this issue of the l.o.d. so right now i, too, am very sympathetic to these people. i hope, as very often happens, this goes into your neighborhood and increases your business. it is not improbable that that will happen.

but as of right now, i do not intend to support a request for jurisdiction. is there a motion? vice president goh: i was going to make a motion but waiting until i had our council's attention. how many votes do we need for jurisdiction? >> four votes. vice president goh: i'll just make a few more comments because it seems clear we won't have the votes. i was trying to stay away from the merits of the case as we try to do and we're looking at jurisdiction requests. it may be that their intention, the gap's intention is to only

have one shop or maybe even 10 shops and come in underneath a formula retail. but we also heard they don't have any bricks and mortar store subsidiaries that have even one fewer than 10, they only have many, many, many. so i do think it's putting pressure on our formula retail ordinance. in terms of the questions the various commissioners asked about and then when it hits 10, then what? then it hits 11. so i guess i'll go ahead and make the motion. are there comments from other commissioners? i make a motion to grant the jurisdiction request. >> ok. thank you. mr. pache counter, o, if you could call the roll, please. >> on that motion from the vice president, grant the jurisdiction required,

commissioner hwang. >> aye. >> president peterson? >> no. >> commissioner garcia? >> no. >> commissioner fung? >> aye. >> the vote is 3-2 to grant. the rules require four votes to grant jurisdiction or jurisdiction is denied. >> thank you. president peterson: we can move on to item number five, if you'd call that item, please. >> calling item 5, bill number 10-056. elizabeth kantor versus department of public works, urban forestry, property at 835 wisconsin street. the appeal on may 10, 2010 of a tree removal permit, order 178.654. president peterson: thank you.

since this is a denial we'll start with the department, ms. short, you have seven minutes. >> thank you. carla short from the department of public works, bureau of urban forestry. we received an application to remove one tree at 835 wisconsin. they accept the information provided by the applicant the tree is 26 years old with a trunk diameter 11.5 inches and an estimated height of 35 feet. the applicant's reasons given for removal were disruption to the sidewalk, sewer intrusion and overheadlines invasion. the sidewalk on wisconsin street is 15 feet wide which would allow for a significant basin enlargement. we're recommending a four by nine foot basin to reduce the number of roots that would need to be cut in order to repair the sidewalk and give tree roots more room, it makes them less likely to disrupt the sidewalk in the near future.

they tend to take advantage of the space there. they're a bit opportunistic. to address the second issue of tree system in the sewer. we often hear complaints tree roots have invaded a sewer line but there's no evidence that tree roots will actually break and then invade a sewer line. however, if a sewer is already cracked and degraded, tree roots would certainly exploit those breaks and break the line, tu of any species of tree not just for a tree with somewhat aggressive roots. i think it's important to not have degraded sewers out there whether or not there are tree roots involved and if the sewer was repaired, then -- and upgraded, then it would be very, very unlikely this tree or any future tree would get into that sewer line. since i'm on the sewer, i wanted to address a comment made in the brief that described the design flaw.

and i would just note at the d.p.w. hearing where ms. kantor testified because her house was set back and down, the sewer had an unusual design to it. and i think it angled and was also higher than usual. if i'm remembering correctly. so i believe the hearing officer's reference to that design flaw was based on her testimony that it was an old sewer and an old house and because of the hill and where the house was located, her sewer had some problems with the design. but again, i just want to emphasize if the sewer itself was not already degraded, there's no scientific evidence that shows tree roots can surround and impact a sewer line. there's evidence they will exploit an existing crack. ms. kantor's objections to our suggestion that the tree basin be expanded to allow for safe sidewalk repair and reduce the likelihood of another disruption in the future was

weediness and garbage and dogs. and any tree basin has the potential to get weedy and garbage can get trapped in there and dogs can be attracted. there are things you can do within our guidelines to put up an edging treatment to help reduce the likelihood of the dogs but some basic maintenance is a requirement of having anything in front of your house, including just a bare sidewalk with no trees. you can have weeds come up in the cracks and garbage. i also would submit that's not a real valid objection to opening up the sidewalk further. it is true that metrosidius excelsior do have a aggressive root system and cause root damage but provided many benefits. she notes she appreciates trees. we all know i routinely come before you to emphasize the oxygen and storm water benefits, carbon dioxide uptake

and carbon sequestration and i will emphasize again mature trees provide many greater benefits than do small trees so we would be at a 26-year deficit if this tree were removed and another small tree were planted in its place. in this case, the wide sidewalk does allow for a significant basin expansion. we could mine high the number of roots that would need be cut. again, we would hopefully reduce the likelihood of a future disruption or at least a near future disruption, and we would further the benefits of this mature, established tree. just one example based on the species and size the tree can intercept more than 1,100 gallons of storm water in one year and with san francisco's sewer system it's a significant benefit to the city. so we would urge you to uphold our denial, preserve this mature, established tree.

while we're certainly sympathetic to the costs, there are many benefits the tree provides to the city. commissionter fung: ms. short? is this tree, a christmas tree, is it on your recommended list? >> we recommend it in very difficult site conditions because it can take a lot of wind and salt and fog. i probably would not recommend it on a hill where you have good site conditions. president peterson: i'd like to hear more from you on the benefits of a mature tree. you said something about storm water but i didn't catch it all. >> sure. trees help slow down storm water, large drain events and also through their roots uptake storm water. expanding the basin around the tree would actually increase the storm water benefit of preserving this mature tree. now, a larger tree will take up more storm water than a smaller

tree so the benefits that the city gets from having mature, established trees are far greater than younger, smaller, growing trees. in addition, the highest mortality rates for trees are during their first five years so every time we remove a healthy, established tree, we're increasing the likelihood we'll have successive small trees before they get established so that's another small concern. commissioner garcia: ms. short, not to parse your words in your brief but in your brief or in the brief it's stated that the sewer is -- i can't remember the numbers, eight feet away from the tree and the tree, the breakup of the sidewalk only extends six feet so therefore, it's been concluded that whatever damage there is to the sewer pipe is not from the trees, it's a design problem, as you mentioned, having to do with angles and all that stuff.

but in our papers, and i'm sure you read the same thing, the appellant states they photographed the pipe and there's absolutely roots in there. and i know you said that's not something that's caused by a tree but it's something a tree will avail itself of if there's damaged pipe. >> that's right. commissioner garcia: can you talk about the eight feet, six feet issue? >> sure. i think the main reason for the conclusion of the findings in the director's order was to suggest that the tree exceeds the guidelines for distance away from the sewer. and therefore, any repairs that would need to be made to the sewer could be made without destabilizing the tree or requiring its removal. in some cases we have trees planted very close to the sewer and in order to trench down 10 feet, you simply can't make that repair and keep the tree intact. and then the six feet was indicating that's the primary path of travel for pedestrians on the sidewalk.

so as long as we have six feet that's intact, we can expand tree basins to allow for the roots without negatively impacting the pedestrian access. so whenever we're looking at basin expansions, we have to look at the a.d.a. guidelines and ensure we have sufficient pedestrian access. so that note, i believe the intent of that note was to suggest even if we make an oversight basin, we've got six clear feet that's not being significantly damaged by the tree so we would have an intact sidewalk there. commissioner garcia: and the other issue i have, and it's come up before, is that is anyone paying tangs to hearings that go on at the u.f. and d.p.w.? if they were considering putting in a tree, they would say no, i don't think this is a good idea, look at the problems these people are having, the fact that i might have underneath my property or near to my property a sewer that is invasible might make me say, i

don't know if it is, i don't want to go through the expense of having a photographer go out and run his camera into there -- not a photographer, a plumber, run his camera and find out if i have vulnerable sewer lines so therefore i won't put in the tree because if i do the city won't allow me to do anything but go repair that, keep a tree that's going to be problematical that they no longer recommend because it has invasive roots, how do you respond to that? how do you respond to that person? >> that is a difficult answer to give, but i think i would say if -- i don't think it's in the city's best interest or anyone's best interest to have degraded sewer lines. so the sewer should probably be replaced, if there was no tree at the site, the sewer should probably be replaced because it's full of cracks and we have sewage seeping into our ground and ground water system. so if everyone were to upgrade their sewer to meet the current

guidelines for a cast iron sewer, we wouldn't see very many tree-sewer conflicts. so i think my response, although it is not a cheap response would be the sewer should be upgraded one way are another, and if you upgrade the sewer, then you no longer have this real worry about the tree. commissioner garcia: but if i don't have the problem right now, i'm not aware of it, i might have decreased -- you know, water flow, whatever it is when the sewer is going in or coming out, you know, and i'm not really aware of the problem, i'd love to have a tree, i think it's ecologic will i had good to have a tree but i don't want to go to that additional expense of having my sewer line photographed, so therefore thank you but i think this time i'm not going to put in a tree, you know. >> i think that's a legitimate risk that we run with our policy to try to preserve mature trees. i think my only other comeback would be, we've lost the vast majority of our mature trees.

some estimates have stated we have 1% of mature, established trees remaining in san francisco. so the bureau's perspective is it these trees are healthy and we can have a safe pedestrian environment and preserve these trees, we've got to get the next generation growing or we're behind the eight ball. commissioner garcia: i have four trees on my property, by the way. vice president goh: do i have a follow upquestion? i don't know if it's appropriate but i've heard and it's come in my neighborhood, a list including, i think from the captain of our police district, that there was a scam, a video -- i'll video your sewer line, street tree scam. have you heard about this? >> i've heard of this as well and don't know it's legitimate but we heard someone was going around and offering to do that

and offering to expedite their permitting to get the tree out. vice president goh: and showing the video that was allegedly of this sewer but not really anybody's, the same video was shown over and over. so, anyway. thank you. >> ms. kantor? you also have seven minutes. >> i'm elizabeth kantor. and i own this house at 835 wisconsin street and i've had it since 1980. and in 1984, you know, with active neighborhood enthusiasm, we planted the meteosidius excelsior tree in front of the house. it didn't come along with any advice or any cautions or any

information about what the maximum height of this tree would be. it has reached a stunning height and a huge size, and it was certainly the tree that was planted by the friends of the urban forest. i did not, unfortunately, research it or make any selection at that time. and in early 2010 i was cited by the city for the sidewalk, many, many squares, including the curb, and then i got informed by pg&e they were topping the tree because of the invasion of the overhead wires and i thought to myself how many times we have had to rout out the sewer pipe of roots, lately the plumber has been telling me he's taking roots out. it just seems like such -- the most obvious and perfect solution to plant another tree

in that place. of course my own expense. this tree is now 26 years old. you know, the next one, hopefully, will be there as long and trees, you know, mature and age over time and another one needs to come, i think, to this place at this time. the situation with the sewer is it is an old clay pipe, it's an old house. the house was built low to the street and over the years all the newer houses are higher so that there's nothing -- there's no design flaw, it's just on a rather level pitch, and it's very deep under the sidewalk. and it's not cracked or broken, i don't believe. but where the cast iron from the building meets the clay, there's a little leakage at the juncture there but it's under the street. and so that's probably, according to the plumber who took the photos for me, and i was there watching him put the

camera down, you know, i looked in his camera, he made me a videotape and gave it to me, so i don't think it was anybody else's sewer that he photographed and showed me because i was watching the camera go through. the roots grow in at the place where the water leaks out where the two pipes meet. i don't think that that pipe is broken otherwise or leaking, cracked, you know, under the sidewalk. but roots do grow in regularly. so anyway, obviously denials at the hearing and permits to replace this tree and in the course of preparing this brief, i discovered this is a notoriously nasty tree. it has really aggressive roots and caused tremendous damage, i bet you the city has given a lot of permits out and it knows, also, of a lot of damage that's happened to the city's

own pipes because of the roots of this tree which are known to lift entire pipes. no, they don't necessarily go into them but the roots are huge and they lift pipes. and i've learned this from ann arborist i spoke to and also a fellow named lars costello, a uc-davis consultant to san francisco county on street trees and probably is known to ms. short. i quoted, you know, basically our communication in our email that he really feels -- he wished me good luck. i invited him here tonight in terms of participating in this appeal. i'm so sorry that the bureau of urban forestry isn't on my side and isn't helping me in terms of giving me information about those trees and this tree

which, you know, in fact shouldn't have been planted. i wish that they could help advise citizens of san francisco about the safest, best trees to plant and warn us of those trees that are likely to disrupt our systems, even if they've been in there for some number of years, because maybe there is something i could have done years ago to, you know, walled off these roots from growing into the sewer pipe. it is far enough away in terms of feet down below the street, i guess, to meet the city's requirements, but for a 35-foot tree, the roots are growing at least 35 feet away from the base of that tree, and, you know, it's a nice tree but i think it's really -- in terms of the safety the street and theon going -- the ongoing

sidewalk situation and sewer situation, it's time for it to be replaced with another healthy, sustainable tree. it's done its job and provided lots of oxygen, taken up lots of carbon monoxide over the years and i think it's time for another tree to start growing into that. at 835 wisconsin street. i would like to perhaps -- i don't know if -- get the city's numbers, how many permits -- how many trees of this nature have in fact caused damage? i left a request at the bureau of urban forestry because i can only leave voicemail, to ask if i could get some numbers, some information or data about in fact how much damage does the city know this tree has

inflicted on sewer systems, many of those probably the city's own. so that's the other piece of this that i don't have the information yet for. and perhaps it's worth gathering that and coming back to you. president peterson: ms. kantor, did you offer a specific tree of any diameter. >> in fact, i would love -- i want the city to tell me, could i ask them, what would be the very best tree, the safest one, i'll put in whatever size tree is most likely to succeed, and what's going to be most likely to live past its first difficult five years and what size would be best to put in? i mean, i am ready to be helped here. i'm not the expert. and i suggested -- it's called a tristiana -- tristianopsis --

it was in my original permit but i was advised by ann arborist it would be the safest. president peterson: thank you. thank you. is there any public comment on this item? if there is, please step forward. ok. seeing none, then ms. short, you have three minutes of rebuttal if you care to use it. >> thank you, karla short, department of public works, bureau of urban forestry. i don't need my three minutes but if a permit is granted we would be very happy to work with ms. kantor and advise her on species and we do it every day when people come to us for permits to plant trees or remove trees. tristianopsis loritis is a good street tree. all trees are capable of damaging sidewalk and all trees are capable of exploiting

cracks or leaks in sewer systems but that tree tends to be very well behaved and is a good option and we'd be happy to talk about other options. i'm sorry we did not -- i didn't actually get the message, i don't know who in my office may have gotten the message asking for this information. i did read it in the brief. we don't track specifically this type of information and we would only be able to look at the data we have which would be based on tree removal, permit requests and then reasons given for that. but we don't dispute that mtrosidius ex-celsius causes sidewalk damage with aggressive roots and isn't one we recommend in many circumstances in san francisco and tend to reserve it for really harsh climate conditions which also have sandy soil so that helps a little bit. but i think from our perspective, really, the goal is to preserve the larger, mature trees because they provide more benefits to the

city. commissioner hwang: ms. short, i'd like to hear replanting of more, not the baby trees but do you ever have replantings with more mature trees and is that an effective sort of alternative? >> we do. and generally, there is some evidence that younger trees will establish more quickly than larger trees when -- and the larger the tree, the more root system you need to be able to transplant so your transplant success, particularly if you're digging up a tree can go down the larger it is because you're less likely to get the full root system. having said that, planting larger boxed trees that have been grown in containers has been successful and we will often require it at our hearings if there's a particularly large tree that's being removed and especially if

there's a neighborhood concern that they're losing that benefit and that tree. so it is certainly possible to put in larger box sizes. they would require a little bit more additional water and care to ensure that they don't go into transplant shock. but when they are containerized and grown into those boxes, there's a much better success of planting than something that might be dug up. and i think when people talk about those trees getting established more quickly, it's the concern that you've lost some of the root system. commissioner hwang: another question i had was if you were to put one of those in, would -- where it was described by the requestor there's this leak that is where the roots enter, would that be something that you would recommend be resolved should a new tree be planted anyway? >> certainly. sewers are not designed --