A.

Intent. It is the stated intent and desire of the Town Council of the Town of Apple Valley to recognize and preserve the contribution that Joshua Trees have made to the desert environment and, more specifically, to the Town's "Better Way of Life". In conformance with this recognition, no existing Joshua Tree shall be disturbed, moved (transplanted or otherwise), removed or destroyed unless such disturbance, move, removal or destruction is first reviewed and approved by the Town of Apple Valley. The Town Manager, or designee, shall be responsible for review and approval of any request to disturb, move (transplant or otherwise), remove or destroy any existing Joshua Tree located on any property within any zoning district in the Town of Apple Valley. Forms for such review shall be available within the Planning Division.

Further, while it is the intent and desire of the Town to preserve and protect all Joshua Trees, this intent and desire shall be balanced against the community's need for growth and the development rights of individual property owners. To achieve this preservation and protection, while protecting both the property rights of property owners and the community's desert environment, anyone submitting an application to disturb, move, remove or destroy an existing Joshua Tree shall use all means necessary to retain and preserve such Tree(s) in its native (present) location in considering and presenting said Tree Disturbance application. This application shall take into consideration lot configuration, potential property development (buildable envelope), onsite circulation and all associated and related infrastructure needed to support construction within the buildable envelope. Further, persons submitting an application for a discretionary review or for any subdivision of land within the Town of Apple Valley upon which a Joshua Tree(s) is present, shall use all reasonable means available to retain and preserve the Tree(s) in its native (present) location in considering and presenting said application or subdivision request with regard to lot location and configuration, potential property development (buildable envelope), circulation system and all associated and related infrastructure.

B.

Retention in Place. It is acknowledged that community development may be more appropriately served if some existing Joshua Trees are allowed to be relocated. The following shall be the minimum criteria for the preservation of Joshua Trees in place. While Joshua Trees which do not conform to the following criteria must be preserved, they may be transplanted to another location on the same property or may be made available for adoption through the Town's Joshua Tree Preservation and Adoption Program. A Joshua Tree(s) which conforms to the following shall be preserved in place unless its removal, transplantation or destruction is approved as prescribed within this Section 9.76.040 of the Town of Apple Valley Municipal Code.

For any Joshua Tree(s) which conform to the criteria listed below, for which the property owner/applicant has made a request for a Building Permit, application for a discretionary review or application for a subdivision of land within the Town of Apple Valley, said owner/applicant shall submit, as part of the application for approval, documentation of their best efforts to retain and preserve all Joshua Tree(s) within the limits of the development or subdivision in its native (present) location. Such documentation of best effort shall include how alternative lot configurations (including building envelopes on lots with existing Tree(s)), circulation, physical or environmental constraints of the site, allow no alternative subdivision configuration which would retain and preserve the Tree(s) in its native (present) location.

1.

A Joshua Tree that is known, by historic record, including pictures or written description, to be at least forty (40) years old.

2.

A Joshua Tree which has a width of at least fifteen (15) feet as measured from the furthest point of outstretched branches (measured parallel to the ground).

3.

A Joshua Tree which is at least fifteen (15) feet in height as measured from the base of the trunk to the highest point of the Tree.

4.

A Joshua Tree which has a trunk measuring at least twelve (12) inches in diameter as measured four (4) feet from the ground.

C.

Transplantation. Transplanting approved by the Town of Apple Valley must be initiated and completed under the supervision of a Desert Native Plant Expert ^[16]. Approval of such transplant must take into consideration the time of year, the plant's original and transplanted physical orientation, prevailing wind direction, soil type of the original and transplanted locations, and other related attributes which may affect the successful transplantation of the Joshua Tree(s) in question as determined by the Town and the retained Botanist.

Joshua Trees that are proposed to be removed shall be transplanted or stockpiled for future transplanting wherever possible. In the instance of stockpiling and/or transplanting the permittee has submitted and has had the approval of a Joshua Tree maintenance plan prepared by a Desert Native Plant Expert(1). This plan shall include a schedule for maintenance and a statement by the Desert Native Plant Expert that this maintenance plan and schedule will be implemented under his/her supervision. The schedule shall include the requirement that a maintenance report is required at the end of the project or at six (6) month intervals, evidence to the satisfaction of the Building Official that the Desert Native Plant Expert has supervised the scheduled maintenance to the extent that all transplanted and stockpiled plants have been maintained in such a manner to insure the highest practicable survival rate. In the event that this report is not satisfactory, a tree and plant replacement plan and implementation schedule prepared by a Desert Native Plant Expert may be required by the Building Official.

D.

Noticing. To promote awareness of the availability and disposition of Joshua Trees within the community, in addition to the Noticing requirements specified within Chapter 9.13 "Public Hearings and Notice", the Planning Division of the Town of Apple Valley shall incorporate the following language into any Legal Notice for the subdivision of land or the review, for possible approval, of any discretionary application, to advise all interested parties that an existing Joshua Tree(s) may be affected, transplanted or removed by the approval and development of the discretionary request:

"One or more existing Joshua Tree(s) may be affected, transplanted or removed by the approval and development of the request under consideration identified in this Legal Notice."

E.

Tree Program. In the Town's effort to retain and preserve, in place, existing Joshua Trees, the Planning Division of the Town of Apple Valley shall establish and maintain a Joshua Tree Preservation and Adoption Program. This Program shall be a listing, available to the public, of locations where individuals have applied to disturb, move (transplant or otherwise), remove or destroy an existing Joshua Tree(s). The Program shall include the name of the property owner, the address of the property containing the Joshua Tree(s), a mailing address for the property owner, a daytime contact phone number, the number of Trees disturbed, moved, removed or destroyed, and the approximate size, physical characteristics and physical condition of the available Tree(s) as of the date the Tree(s) was listed on the program. The Program shall also list a date that each individual Tree was disturbed, moved, removed or destroyed.

No Joshua Tree(s) shall be approved for transplantation more than once in any ten (10) year period. Although no Joshua Tree(s) may be approved for transplantation more than once in any ten (10) year period, the Planning Commission may, at the time of a discretionary review, approve an interim location, for up to one (1) year for storing Joshua Tree(s) to allow for a phased development of a project or property.

Said Joshua Tree Preservation and Adoption Program will include a listing of individuals whose property has a Joshua Tree(s) that is available to be transplanted to another location, the name of the property owner, the address of the property containing the Joshua Tree(s), a mailing address for the property owner, a daytime contact phone number, the number of trees available for adoption, and the approximate size, physical characteristics and physical condition of the available Tree(s).

The Program may also include, reviewed and updated annually, a list of the names, mailing addresses and daytime contact phone number of individuals who have expressed a desire to receive transplantable Joshua Tree(s).

F.

Findings for Removal. The Reviewing Authority shall authorize the removal of a Joshua Tree(s) subject to provisions of this Chapter only if the following findings are made:

1.

The removal of the Joshua Tree(s) does not have a significant adverse impact on any proposed mitigation measures, soil retention, soil erosion and sediment control measures, scenic routes, flood and surface water runoff and wildlife habitats.

2.

The removal of the Joshua Tree(s) is justified for one of the following reasons:

a.

The location of the Joshua Tree(s) or its dripline interferes with the reasonable improvement of the site with an allowed structure, sewage disposal area, paved area or other approved improvement or ground disturbing activity as determined by the Town Manager, or designee. Also such improvements have been designed in such a manner as to save as many healthy native trees and/or plants as reasonably practicable in conjunction with the proposed improvements.

b.

The location of the native tree or plant and/or its dripline interferes with the planned improvement of a street or development of an approved access to the subject to adjoining private property.

c.

The location of the native tree or plant is hazardous to pedestrian or vehicular travel or safety as determined by the Town Engineer.

d.

The native tree or plant, because of its presence, interferes with or is causing extensive damage to utility services or facilities, roadways, sidewalks, curbs, gutters, pavement, sewer line(s), drainage or flood control improvements, foundations, existing structures, or municipal improvements.

e.

The condition or location of the native plant or tree is adjacent to and in such close proximity to an existing or proposed structure that the native plant or tree has or will sustain significant damage.

G.

Deviation. In the event that the documentation of the best effort to preserve an existing Joshua Tree(s) in its native (present) location on site demonstrates that the Tree(s) cannot be retained and preserved in place unless a required Development Standard applicable to the underlying zoning designation is modified or reduced, the following deviation(s) may be granted by the Planning Commission specifically to allow the retention of the Joshua Tree in its native (present) location:

1.

Front yard setback - the required front yard setback may be reduced the minimum distance necessary to preserve an existing Joshua Tree(s) in its native (present) location by no more than ten percent (10%) of the required setback, not to exceed a reduction of seven and one half (7 ½) feet.

2.

Side yard setback - the required side yard setback may be reduced the minimum distance necessary to preserve an existing Joshua Tree(s) in its native (present) location by no more than twenty percent (20%).

3.

Rear yard setback - the required rear yard setback may be reduced the minimum distance necessary to preserve an existing Joshua Tree(s) in its native (present) location by no more than twenty percent (20%), not to exceed a reduction of seven and one half (7½) feet.

4.

Minimum lot width - the Planning Commission, in its consideration of a subdivision request, may, to preserve an existing Joshua Tree(s) in its native (present) location, reduce by up to ten percent (10%) the minimum lot width otherwise required for the minimum number of lots necessary to preserve the Tree(s) in place, but in no case shall this lot width reduction exceed more than fifteen percent (15%) of the total number of lots within the subdivision under review.

5.

Minimum lot depth - the Planning Commission, in its consideration of a subdivision request, may, to preserve an existing Joshua Tree(s) in its native (present) location, reduce by up to ten percent (10%) the minimum lot depth otherwise required for the minimum number of lots necessary to preserve the Tree(s) in place, but in no case shall this lot depth reduction exceed more than fifteen percent (15%) of the total number of lots within the subdivision under review.

6.

Minimum lot area - the Planning Commission, in its consideration of a subdivision request, may, to preserve an existing Joshua Tree(s) in its native (present) location, reduce by up to five percent (5%) the minimum lot area otherwise required for the minimum number of lots necessary to preserve the Tree(s) in place, but in no case shall this lot area reduction exceed more than fifteen percent (15%) of the total number of lots within the subdivision under review. No lot shall be reduced below the lot area specified and required within Measure "N"(no less than 18,000 square feet of net lot area).

H.

Penalty for Violations. Unless otherwise provided, any person, firm or corporation violating any provision of this Chapter, shall be guilty of a misdemeanor. In addition, when one (1) or more plants or trees are removed in violation of the provisions of this Chapter or any other Town Code or ordinance, the removal of each such separate plant or tree shall be a new and separate offense.

Payment of any penalty herein provided shall not relieve a person, firm or corporation from the responsibility of correcting the condition resulting in the violation.

In addition to other penalties imposed by this Code or other law, any person, firm or corporation convicted of violating the provisions of this Chapter regarding improper removal of regulated native trees or plants shall be required to retain, as appropriate, a tree or Desert Native Plant Expert to develop and implement a replacement program. Such expert shall determine the appropriate number, size, species, location and planting conditions for replacement plants or trees in sufficient quantities to revegetate the illegally disturbed area.

If it is inappropriate to revegetate the illegally disturbed area, another appropriate location (e.g., public parks) may be substituted at the direction of the court.

The violator shall post a bond in an amount sufficient to remove and reinstall plant/tree materials that were planted as a part of such a replacement program and failed within two (2) years.

I.

Definition. Disturbance shall be acts of man which, as determined by the Town's Native Plant Expert, directly result in physical harm or damage to a Joshua Tree or which can be seen with reasonable certainty to cause the deterioration of the environmental setting around the Tree or interferes with the Tree's potential for growth and reproduction or causes direct physical contact/damage to the plant.

The determination of the Town's Native Plant Expert may be challenged before the Director and, subsequently to the Town Manager, where the facts upon which the Native Plant Expert based his/her determination shall be presented for consideration and which facts demonstrate with reasonable certainty that the Joshua Tree in question has been, is being or will be adversely harmed by the act(s) in question. The decision of the Town Manager shall be final.