City of Culver City, California
City Council Agenda Item Report
RECOMMENDATION:
That the City Council introduce, for first reading, Ordinance No. 2006-O____, to
amend Title 9, General Regulations of the Culver City Municipal Code (CCMC) by
adding Chapter 9.12 to include procedures for View Preservation (Obstruction from
Trees).
BACKGROUND:
On October 24, 2005, the City Council received public comments on this item.
However, they continued this item to November 7, 2005. At the November 7
th
City
Council meeting, the Council continued the item to a date uncertain after they
requested that staff make revisions to the ordinance. Before the Council today is a
revised ordinance that staff believes addresses the Council’s comments.
This item was originally scheduled for the February 14, 2005, City Council meeting
but was taken off the agenda due to the landslides that occurred in the Culver
Crest area. It was decided that due to the sensitivity of this issue and the
landslides, it would be best to postpone the first reading of the view preservation
ordinance.
Meeting Date: 01/23/06 Item Number: A-3
AGENDA ITEM: Introduction and First Reading of an Ordinance to Amend
Municipal Code Title 9, General Regulations, Regarding View Preservation
(Obstruction from Trees).
Contact Person/Dept: Jose Mendivil/CDD Phone Number: (310) 253-5757
Fiscal Impact: Yes [] No [x] General Fund: Yes [] No [x]
Public Hearing: [] Action Item: [X] Attachments: [X]
Public Notification: On 01/09/06, a postcard notice was mailed to all residents and
property owners within and generally adjacent to Baldwin Hills (including Hetzler Road,
Tomkins Way, Blair Hills, Culver Crest, and Youngsworth Property Owners). A postcard
notice was also sent to Marta Zaragosa, Tom Camarella, the Chamber of Commerce,
Downtown Business Association and all Culver City Homeowners Associations. On
01/09/06, email notification was sent to the Real Estate Advisory Brokers List and the
Master Notification List. On 01/05/06, a notice was published in the Culver City News.
Department Approval:
Susan Evans (01/19/06)
CAO Approval:
Martin R. Cole for Jerry B. Fulwood
(01/19/06)
City Controller Approval:
N/ACity of Culver City, California
City Council Agenda Item Report
On July 26, 2004, the City Council held a public meeting to consider and discuss
the City’s ability to adopt regulations to protect views. At that meeting, staff
provided an overview of existing City policies and regulations and presented
various options for City Council consideration (Attachment 2).
At the conclusion of the discussion, City Council directed staff to prepare a “View
Preservation” ordinance that sets out a procedure for property owners located
within hillside areas of the City to seek restoration of views blocked by trees
through a “private right of action” process (Attachment 1).
A “private right of action” process is established through a City Ordinance, which
enables property owners to resolve disputes among themselves pertaining to
views obstructed by trees as well as provides judicial enforcement without direct
City involvement.
In regards to views blocked by buildings or structures, the City Council felt the
existing Zoning Code development standards that limit height and bulk of buildings
was sufficient to address views obstructed by buildings. However, the City Council
also directed staff to investigate the possibility of this same “private right of action”
process related to views obstructed by buildings.
Pursuant to Council direction, Planning Division staff conducted further research
on the issue of private right of action pertaining to both landscaping and buildings
and the Planning Commission (“Commission”) held a Study Session on November
10, 2004 to discuss staff’s research, review the draft ordinance and provide input
(Attachment 3).
DISCUSSION:
Private Right of Action
View Ordinances with a “private right of action” process were found in the Cities of
Tiburon, Santa Barbara, and Berkeley and were used as the basis in formulating
the proposed View Preservation Ordinance (Attachments 4, 5, and 6).
The primary concept of the proposed View Preservation Ordinance is that it
establishes a process or series of steps, for handling view disputes and provides
property owners the ability to seek legal redress in accordance to this defined
process. The View Preservation Ordinance sets out procedures for initial
discussions, mediation and arbitration (and possible litigation), but with the
absence of any participation on the part of the City itself. City of Culver City, California
City Council Agenda Item Report
The Ordinance requires that view “complainant” first approach the neighboring tree
owner informally in a procedure called “Initial Discussion”. The complainant is
responsible on his or her own for actually notifying and approaching the neighbor.
If this fails to resolve the problem, the Ordinance sets out procedures for preparing
a tree claim, mediation and arbitration (voluntary on the part of the respondent)
and finally, for litigation. At no point does the City become directly involved. The
complainants are responsible for finding and paying for a mediation or arbitration
service and for providing any expert information required, such as arborists
reports.
The Ordinance also provides evaluation criteria to determine when an
“unreasonable obstruction” has occurred by the growth of trees. A hierarchy of the
types of restoration actions is also listed that discourages wholesale tree removal
or cutting when less invasive methods such as trimming, thinning or crown
reduction is possible (Attachment 1).
The proposed View Preservation Ordinance applies to hillside areas in the City
such as Blair Hills and Culver Crest. Staff conducted site visits in Blair Hills and
Culver Crest to assess the areas that had a view. Photographs were taken from
various residences in both areas illustrating some of the views and views that are
obstructed by trees (Attachment No. 8). The hillside areas to be governed by this
ordinance are illustrated on the attached map (Attachment No. 9).
Planning Commission Comments
At the Study Session, the Planning Commission indicated that overall, the
proposed View Preservation Ordinance was reasonable, fair and appropriate. The
following revisions and input provided by the Planning Commission were
incorporated to the proposed Ordinance:
Value of Trees. Emphasize the value of trees along with the value of views at
the beginning of Ordinance. Emphasize that trees are a great benefit to the
community;
Landscaping and Maintenance. Recognize the value of good landscaping and
maintenance;
Hierarchy of Restoration Actions. Prioritize “Restoration Actions” starting with
the least drastic measures such as trimming and thinning;
Crown Reduction. Incorporate less invasive methods of view restoration such
as crown reduction since topping is sometimes very destructive to trees;City of Culver City, California
City Council Agenda Item Report
Preexisting Views. Clarify language throughout the Ordinance that view
preservation applies only to views, which existed at the time the resident
acquired their home. It would not apply to newly-gained views due to removal
of an existing tree;
Tree Claim. The tree claim preparation should apply immediately after the
initial discussion process fails;
Emphasis on Initial Discussions. Basic approach should be to establish a
process including a series of steps beginning with the neighbors trying to
resolve the issue on their own before proceeding to mediation, arbitration and
litigation; and,
Various clarifications and corrections. Delete references to “active use area”
throughout the entire Ordinance and include provision for voluntary agreement
between the parties.
Inheritors and View Lots
At the November 7
th
Council meeting, members of the public asked that the
ordinance be revised to allow the transfer of a view restoration (resulting from a tree
claim) in cases where a property is passed to a named inheritor so that the inheritor
can take benefit of the view restoration action. The ordinance presented at the
November 7
th
Council meeting only addressed successors in interest or purchasers.
The issue of “view lots” was also mentioned at the Council meeting and public
testimony included a request to further revise the ordinance to allow for the
restoration of views at the time a particular property or lot was created. The Council
requested changes to the ordinance that would grant heirs, as well as successors in
interest or purchasers, the benefits of a view restoration action on the property to be
transferred. The Council further asked that staff review how the ordinance could be
changed to address the restoration of views that existed at the time a lot was
created.
The ordinance before the Council (Attachment No. 1) addresses these issues and
Attachment No. 7 is the ordinance in strike-out/underline form so that the Council
can see how it was revised. The revised ordinance still allows the processing of tree
claims for views that existed at the time of purchase. Not all claimants may have the
evidence to prove that a view existed at the time their lots were created. Therefore,
under such circumstances the ordinance would allow such claimants to re-establish
a view, but re-establish the view which existed at the time of purchase.City of Culver City, California
City Council Agenda Item Report
It will potentially be easier to demonstrate evidence of a view established at the time
of purchase as opposed to a view which was established at the time of lot creation.
With regard to the ordinance applying to views established at the time of lot creation,
the benefit of the revisions to the ordinance is that by using the ordinance’s criteria
for determining unreasonable obstruction and restorative action and the hierarchy
and guidelines for restorative actions, a process is established that potentially
restores views that existed at time of lot creation. Conversely, the ability for
individuals to provide proof that views existed when lots were first subdivided will be
problematic as photographs or other forms of evidence may not exist. Further, if a
tree claim to restore views at time of lot creation reaches the courts (through the
process established under the ordinance), a judge could be put in a position to
potentially rule in favor of the complainant which could lead to an increase in the
complainant’s property value (restoration of a view lot) with no compensation to the
tree owner whose loss of trees caused the value increase.
Research on Private Right of Action on Views Obstructed by Buildings
Staff did not find a sample ordinance where a City granted a private right of action
process for views obstructed by buildings or structures. In consulting with both the
City Attorney for Culver City and offices of the City Attorney for various other cities,
it was determined a private right of action process for views obstructed by buildings
would cause numerous problems for the City as it could be seen as ceding an
aspect of the City’s police powers.
The California Constitution grants cities certain police powers such as control of
zoning regulations, issuance of building permits, and the right to establish
regulations defining property maintenance standards. The Civil Code and the
Code of Civil Procedure of the State define how and when disputes between
neighbors can be adjudicated.
Unless a City uses its police powers to define views as important to the City as a
whole, obstruction of views is not a violation of law. If a City law does not
specifically provide for private enforcement of that law, then even if that City adopts
regulations that prohibit view obstruction, no civil action between neighbors can be
initiated based on the City ordinance. Legal action against a City can be initiated
in an attempt to compel it to enforce its own regulations.
Theoretically, an ordinance with a private right of action process could be created
related to buildings. However, an applicant for a building permit relies on a city’s
proper use of its police powers when a building permit is issued. It would create
tremendous problems if the City, in good faith, issued a building permit, and a
neighbor had the right to sue the builder, due to view obstruction, after
commencement of construction or completion of the building.City of Culver City, California
City Council Agenda Item Report
Many cities control the issue of views blocked by buildings through the
development review (neighborhood compatibility) process, a process which can be
quite contentious. Culver City has a major emphasis on speedy permit processing,
which could be obviated by adding view protection review to that process.
Therefore, the City Council did not seem inclined to add any new steps to permit
processing.
Meeting with Culver Crest Homeowners Association
At the request of the Culver Crest Homeowner’s Association, representatives of
the City Attorney’s office and Planning staff attended their meeting on January 19,
2005 to provide an overview and to answer questions regarding the subject matter.
Some of the residents expressed an interest for the City to take on a more active
role in the ordinance. They requested that an Advisory Committee be created that
would include staff and residents to provide input and possibly mediation
assistance.
Additional Comments by the Public
In March of 2005, after the first reading of the ordinance was postponed, two
Culver City residents expressed concern over specifics in the proposed
language. One resident thought that the cost of mediation and arbitration should
be shared between the disputing parties (Section 9.12.050). Another resident
stated that the limitation language (Section 9.12.065) did not take into account
pre-existing Planning Commission entitlements with conditions that could conflict
with restoration actions (the View Preservation Ordinance should not be used to
override conditions for entitlements already existing). Staff agrees with both
comments and they have been incorporated into the draft ordinance (Attachment
No. 1).
Environmental Determination
The proposed View Preservation Ordinance is not a project as defined by
Section 15378 of the CEQA Guidelines. Also, the proposed activity is general
procedure making and will not result in issuance of entitlements. The activity
does not have the potential for resulting in direct physical change in the
environment. Therefore, the proposed View Preservation Ordinance is not
subject to CEQA and no environmental analysis is required. City of Culver City, California
City Council Agenda Item Report
ATTACHMENTS:
1. City Council Ordinance No. 2005-O____, View Preservation Ordinance
2. City Council Staff Report dated 7/26/04 and Meeting Minutes Excerpt
3. Planning Commission Staff Report dated 11/10/04 and Meeting Minutes Excerpt
4. Town of Tiburon regulations
5. City of Santa Barbara regulations
6. City of Berkeley regulations
7. City Council Ordinance No. 2005-O____, in Strikeout/Underline Format
8. Photographs of Views in Blair Hills and Culver Crest
9. Map of Hillside Areas in the City
MOTION:
That the City Council:
Introduce, for first reading, Ordinance No. 2005-O____, to amend Title 9, General
Regulations of the Culver City Municipal Code (CCMC) by adding Chapter 9.12 to
include procedures for View Preservation (Obstruction from Trees).
MEETING DATE 01/23/06
AGENDA ITEM Introduction and First Reading of an Ordinance to Amend Municipal
Code Title 9, General Regulations, Regarding View Preservation
(Obstruction from Trees)
ATTACHMENTS
Pages
1 City Council Ordinance No 2006-0 — 20
View Preservation Ordinance
2 City Council Staff Report dated 7/26/04 - 3 I
and Meeting Minutes Excerpt
3 Plannmg Commission Staff Report dated 11/10/04
32- qo
and Meeting Minutes Excerpt
4 Town of Tiburon regulations
41 —V
|99| City of Santa Barbara regulations
6 City of Berkeley regulations
6(4-72-
|99| City Council Ordinance No 2005-0 Strikeout/Underline Format
8 Photographs of Views in Blair Hills and Culver Crest
9 Map of Hillside Areas in the CityAttachment No 1
ORDINANCE NO 2006-
ORDINANCE NO 2006-
AN ORDINANCE OF THE CITY OF CULVER CITY,
CALIFORNIA, AMENDING TITLE 9, GENERAL REGULATIONS,
BY ADDING CHAPTER 9 12 TO THE CULVER CITY
MUNICIPAL CODE (CCMC) REGARDING VIEW
PRESERVATION (OBSTRUCTION FROM TREES)
The City Council of the City of Culver City, California, DOES HEREBY
ORDAIN as follows
SECTION 1 Title 9 of the Culver City Municipal Code is hereby amended
by adding Chapter 9 12 thereto to read as follows
CHAPTER 912 VIEW PRESERVATION (OBSTRUCTION FROM TREES)
Section 9 12 003 Findings
The City Council finds and declares as follows
A Views, Trees and vegetation contribute to the aesthetic
value, quality of life, ambiance and economic value of properties within
the City of Culver City ( City )
B Views, whether of the City, the Los Angeles Basin, the
surrounding hillsides and canyons, or other natural and man-made
landmarks produce a variety of significant and tangible benefits for both
residents and visitors
C Trees and vegetation (defined in Section 9 12 010 as
"Tree" ) produce a wide variety of significant psychological and tangible
benefits for both residents and visitors to the community Trees and
vegetation provide privacy, modify temperatures, screen winds replenish
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28oxygen to the atmosphere, maintain soil moisture, mitigate soil erosion,
and provide wildlife habitat Trees contribute to the visual environment
and aesthetics by blending, buffering, and reducing the scale and mass of
architecture Trees within the City provide botanical variety and a sense
of history Trees also create shade and visual screens and provide a
buffer between different land uses The benefits derived from Preexisting
Views may sometimes come into conflict with Trees The planting of
Trees and other vegetation and their subsequent growth, particularly when
such Trees are not properly maintained, can produce unintended harmful
effects both on the property on which they are planted and on neighboring
properties
D This ordinance shall be applicable to the affected hillside
areas in the City including Hetzler/Tompkins, Blair Hills, and Culver Crest,
as shown in gray shading on the map attached hereto and incorporated
herein as Exhibit A, and hereby made a part of this ordinance
Section 9 12 005 Purpose and Principles
A The purposes of this Chapter are to|109| Establish the right of a residential Real Property
Owner, whose property is located within the affected hillside areas
as depicted in Exhibit A, attached hereto and incorporated herein
to preserve Preexisting Views from unreasonable obstruction by
the growth of Trees,|109| Establish that Real Property Owners are in need of a
process to resolve disputes among themselves concerning Views
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-2-within the immediate vicinity of their property that are unreasonably
obstructed by the growth of Trees, and
3 Establish a process and evaluation criteria by which
Real Property Owners may seek mutually acceptable resolution of
such View disputes
B The rights and the restoration processes are based upon the
following general principles|109| The City recognizes the desire of many of its
residents and Real Property Owners for beautiful and plentiful
landscaping, including Trees The City realizes this desire may
sometimes conflict with the preservation of Preexisting Views, and
disputes related to Views are inevitable,|109| The City also recognizes residents and Real Property
Owners cherish their Views of and from the hills of the City The
City recognizes Views contribute greatly to the quality of life in the
City, and promote the general welfare of the entire community|109| Real Property Owners and residents should maintain
Trees on their property in a healthy condition for both safety
reasons and for preservation of Preexisting Views Before planting
Trees, Real Property Owners and residents should consider the
potential for View blockage, both currently and at Tree maturity
Persons have the right to seek civil remedies when threatened by
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L(|109| The City shall establish a process by which a Real
Property Owner may seek to preserve and restore Preexisting
Views from unreasonable obstruction by the growth of Trees
including Views from the lot when it was first created or at the time
the Real Property Owner purchased or inherited the property The
City shall also establish a list of factors to be considered in
determining appropriate actions to restore such Views|109| When a Preexisting View obstruction dispute arises,
the parties should act reasonably to resolve the dispute through
friendly communication, thoughtful negotiation, compromise, and
other traditional means, such as discussions with the appropriate
neighborhood or homeowner association Those disputes not
resolved through such means shall follow the procedure
established herein,|109| It is the intent of the City for the provisions of this
Chapter to receive thoughtful and reasonable application It is not
the intent of the City to encourage clear-cutting or substantial
denuding of any property of its Trees by overzealous application of
provisions of this Chapter, and|109| It is the intent of the City to discourage ill-considered
damage to Trees and promote proper use of Trees and
landscaping establishment and maintenance
-4-Section 9 12 010 Definitions
For the purpose of this Chapter, the meaning and construction of words
and phrases is as follows
Arbitrator A neutral person who will conduct a process similar to a trial,
and who will hear testimony, consider evidence, and make a binding decision for the
disputing parties
Binding Arbitration A legal procedure as set forth in Section 1280 et seq
of the California Code of Civil Procedure
Complainant Any Real Property Owner (including subsequent heirs,
successors in interest and subsequent bona fide purchasers or legal occupant with
written permission of the property owner) who alleges Trees located within the
immediate vicinity and on the property of another person are causing unreasonable
obstruction of his or her Preexisting Views
Crown Reduction/Shaping A method of comprehensive trimming that
reduces a Tree s height or spread Crown Reduction entails the reduction of the top
sides or individual limbs of a Tree by means of removal of leaders or the longest
portion of limbs to a lateral large enough to assume the terminal
Mediation A process in which a neutral third person or persons facilitate
communication between the disputants to assist them in reaching a mutually
acceptable agreement, as further defined in Section 1775 et seq of the California Code
of Civil Procedure
Mediator A neutral, objective third person that assists people in finding
mutually satisfactory solutions to their problem
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28Preexisting View A View which existed from the time the lot with the View
was first created or from the time a Complainant became owner or occupant of the
property or lot with the View
Primary Living Area The portion or portions of a residence from which a
View is observed most often by the occupants relative to other portions of the
residence The determination of Primary Living Area is to be made on a case-by-case
basis
Real Property Owner An owner of real property, including bona fide
purchasers, subsequent heirs and successors in interest
Restoration Action(s) Any specific requirement to resolve a Tree dispute
as discussed in this Chapter
Stump Growth New growth from the remaining portion of the Tree trunk
the main portion of which has been cut off
Thinning The selective and systematic removal of branches from a Tree
so as to improve visibility through the Tree and/or improve the Tree's structural
condition
Topping Elimination of the upper portion of a Tree's trunk or main leader
Tree(s) Any woody plant with the potential to obstruct views, including
but not limited to trees, shrubs hedges and bushes
Tree Claim The written basis for Mediation, Binding Arbitration or court
action under the provisions of this Chapter
Tree Owner Any person owning real property in the City upon whose
land is located a Tree alleged by a Complainant to cause an unreasonable obstruction
to a Preexisting View
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28Tree Removal The elimination of any Tree from its present location
Trimming The selective removal of portions of branches from a Tree so
as to modify the Tree s shape or profile or alter the Tree's appearance
View(s) A scene from the Primary Living Area of a residence The term
"View(s)" includes both upslope and down slope scenes, but is generally medium or
long range in nature, as opposed to short range View(s) include but are not limited to
skylines landmarks, distant urban settings, distinctive geologic features hillside
terrains ridges, and bodies of water The term View(s) does not necessarily include
an unobstructed panorama of these features
Windowing A form of Thinning by which openings or "windows" are
created to restore Views
Section 9 12 015 Rights Established
A A Real Property Owner shall have the right to preserve and
seek restoration of a Preexisting View, when such View is from the
Primary Living Area and has subsequently been unreasonably obstructed
by the growth of one or more Trees, provided that such action has not
been initiated against the same real property by the Complainant with
respect to the same Tree within a two year time period prior to the
initiation of the most recent action
B In order to establish such rights pursuant to this Chapter, the
person must follow the process established in this Chapter In addition to
the above rights, private parties have the right to seek remedial action for
imminent danger caused by Trees
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28C Nothing contained in this Chapter is intended to provide any
authority or process for the permitting of alterations to or the removal of
City owned and maintained Trees
Section 9 12 025 Criteria for Determining Unreasonable Obstruction
The following criteria are to be considered (but are not exclusive) in
determining whether unreasonable obstruction has occurred
A The extent of obstruction of a Preexisting View from the
Primary Living Area of the Complainant
B The quality of the Preexisting Views being obstructed,
including obstruction of landmarks, vistas, or other unique View features
C The extent to which the Trees have grown to obscure the
enjoyment of the View from the Complainant's property compared with the
Preexisting View which was available at this property
D The extent to which the Complainant's Preexisting View has
been diminished over time by factors other than Tree growth
E The deleterious effect of the Trees upon the Complainant s
vegetation through loss of heat and light except that the dropping of
leaves or maintenance factors shall not be considered a criterion under
this Chapter
Section 9 12 030 Criteria for Determining Appropriate Restorative Action
When it has been determined per Section 9 12 025 of this Chapter that an
unreasonable obstruction has occurred, the following unweighted factors shall be
considered in determining the appropriate Restoration Action
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28A The hazard posed by a Tree to any person or structure on
the property of the Complainant Party including, but not limited to, fire
danger and the danger of falling limbs or Trees
B Variety of the Tree, its projected rate of growth and
maintenance requirements
C Aesthetic quality of the Tree, including but not limited to
species characteristics, size, growth, form and vigor
D Location with respect to overall appearance design, or use
of the Tree Owner's property (i e blending, buffering or reduction in the
scale and mass of adjacent architecture)
E Soil stability provided by the Tree considering soil structure,
degree of slope and extent of the Tree's root system
F Privacy (visual and auditory) and wind screening provided by
the Tree to the Tree Owner and to neighbors
G Energy conservation and or climate control provided by the
Tree
H Wildlife habitat provided by the Tree
I The extent to which the Tree provides historical context due
to the age of the Tree and rare and interesting botanical species
Section 9 12 035 Hierarchy of Restoration Actions
A If an unreasonable obstruction of a Preexisting View exists,
a Mediator shall recommend, or an Arbitrator or Court shall order,
Restorative Action based only on this Chapter Restorative Action may
include written directions as to appropriate timing for such Restorative
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Action to be taken Restoration action shall be structured and
implemented in accordance with the hierarchy established herein
Restoration Action includes but is not limited to the following|109| Trimming,|109| Thinning or Windowing|109| Crown Reduction|109| Topping|109| Removal with replacement plantings, and|109| Removal without replacement plantings
B In each case, Restorative Action shall only be required to the
extent a Preexisting View is proven by the Complainant based on
documentable evidence
C Restorative Action may include written conditions (including
ongoing maintenance), and directions as to appropriate timing of such
actions, as well as recordation of an agreement containing covenants or
other documentation to memorialize the conditions and make them
applicable Where Tree Removal is required, replacement by appropriate
species should be considered The Tree Owner may elect Tree Removal
with replacement plantings as an alternative to Trimming Thinning, and
Topping
D In cases where Trimming, Windowing, or other Restorative
Action may affect the health of a Tree that is to be preserved, such
actions should be carried out in accordance with standards established by
the International Society of Arboriculture for use in the State of California
-10-E A Tree which has been the subject to Restorative Action
under the terms of this Chapter, is exempt from being part of another Tree
claim for a period of two years after the date of the satisfactory completion
of the Restorative Action
Section 9 12 040 City Guidelines Concerning Restoration Action
The City provides the following general guidelines concerning Restorative
Actions
A Stump Growth Stump Growth generally results in the
hazard of weak limbs, and its protection is not desirable When
considering Restorative Action for Stump Growth, aggressive action is
preferred Restorative Action which will result in future Stump Growth
should be avoided
B Trimming Trimming is the most minor form of physical
Restorative Action This option is recommended when minor
unreasonable obstruction has occurred, provided that ongoing
maintenance is guaranteed
C Thinning or Windowing When simple Trimming will not
resolve the unreasonable obstruction Thinning or Windowing may be
necessary This action should be supervised by a certified arbonst
D Crown Reduction Crown Reduction may be necessary
when Thinning and Windowing will not resolve the unreasonable
obstruction However, as with Thinning and Windowing, Crown Reduction
should be supervised by a certified arbonst
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E Topping Topping as a Restorative Action should be used
with caution Topping can have deleterious effects on a Tree's health,
appearance and cost of maintenance Topping frequently results in
Stump Growth Tree Removal, with replacement plantings, may be a
preferable alternative
F Tree Removal Tree Removal may be required where it is
essential to preserve Preexisting Views While normally considered a
drastic measure, Tree Removal can be the preferred solution in certain
circumstances
G Maintenance Ongoing Tree maintenance requirements are
strongly recommended as part of Restorative Action in order to achieve
lasting preservation of Preexisting Views
H Permanence Conditions of Restorative Action should be
memorialized in a recordable document, for all affected properties, to help
notify subsequent heirs and successors-in-interest of their applicability
SECTION 9 12 045 Process For Resolution Of Obstruction Disputes
The following process shall be used in the resolution of Preexisting View
disputes between parties
A Initial Discussions|109| Complainant who believes Tree growth on the
property of another has caused unreasonable obstruction of a
Preexisting View from the Primary Living Area shall first notify the
Tree Owner in writing of such concerns,|1010| -12-2 The notification should, if possible be accompanied
by personal discussions to enable the Complainant and Tree
Owner to attempt to reach a mutually agreeable solution and shall
be followed up with a written confirmation of any agreed-upon
resolution and schedule for the required work of View restoration
If personal discussions fail, then neighborhood associations may
be willing to assist with the resolution of the obstruction dispute,|109| The initial notification from the Complainant to the
Tree Owner shall provide a copy of this ordinance In the initial
notification, the Complainant shall invite the Tree Owner to view the
alleged obstruction from the Complainant property and the Tree
Owner is urged to invite the Complainant to view the situation from
the Tree Owner's property Failure of the Tree Owner to respond
to the written request for Initial Discussion within thirty-(30) days
after the date of the posting shall be deemed a refusal by the Tree
Owner to participate in the Initial Discussion phase of the process,
and|109| After the Initial Discussion, if the parties do not agree
as to the existence and nature of the Complainant s obstruction or
to the appropriate Restoration Action or if the Initial Discussion is
refused, the Complainant may proceed with the subsequent
dispute resolution process outlined herein with respect to Tree
Claim preparation, Mediation, Binding Arbitration, and litigation
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13B Tree Claim Preparation
In the event the Initial Discussion process fails to resolve the
dispute the Complainant must prepare a Tree Claim, and provide a copy
to the Tree Owner, in order to pursue Mediation, Binding Arbitration or
litigation under the authority established by this Chapter
A Tree Claim shall consist of all of the following|109| Evidence of Preexisting View A written description of
the nature and extent of the alleged obstruction, including pertinent
and documentable physical evidence Evidence may include, but
is not limited to photographic prints, negatives or slides as well as
written testimony or declarations from residents living in the area
Such evidence must prove the absence of the obstruction of the
Preexisting View Evidence confirming the ownership and the
date of property acquisition of the Complainant s property must be
included|109| Evidence Regarding Unreasonable Tree Blockage
The location of all Trees alleged to cause the obstruction, the
address of the property upon which the Trees are located, and the
present Tree Owner's name and address,|109| Evidence of Attempted Resolution Evidence that an
Initial Discussion, as described in Section 9 12 045, to resolve the
dispute has been made and has failed The Complainant must
provide physical evidence that written attempts at reconciliation
have been made and have failed Evidence may include, but is not
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28limited to copies of and receipts for certified or registered mail
correspondence and
4 Desired Action Specific View Restoration Actions
proposed by the Complainant to resolve the unreasonable View
obstruction
C Mediation|109| If the Initial Discussion attempt fails, then the
Complainant shall send to the Tree Owner a written request to
participate in a Mediation process as a timely means to settle the
obstruction dispute,|109| Acceptance of Mediation by the Tree Owner shall be
voluntary, but the Tree Owner shall have no more than thirty (30)
days after service of notice to either accept or reject the offer of
Mediation Failure to respond shall be deemed formal refusal of
the Mediation process If Mediation is accepted, then the parties
shall mutually agree in writing to the selection of a Mediator,|109| It is recommended the services of a professionally
trained Mediator be employed,|109| The Mediation meeting may be informal The
Mediation process may include the hearing of viewpoints of lay or
expert witnesses, and shall include a site visit to the properties of
the Complainant and the Tree Owner Parties are encouraged to
contact immediate neighbors and solicit input, and
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1 C5 The Mediator shall consider the purposes and policies
set forth in this Chapter in attempting to help resolve the dispute
The Mediator shall not have the power to issue binding orders for
Restorative Action, but shall strive to enable the parties to resolve
their dispute by written agreement in order to eliminate the need for
Binding Arbitration or litigation
D Binding Arbitration|109| In those cases where the Initial Discussion process
fails and where Mediation is declined by the Tree Owner or has
failed to resolve the Complainant's complaint, the Complainant
must offer in writing to submit the dispute to Binding Arbitration,|109| Acceptance of Binding Arbitration by the Tree Owner
shall be voluntary The Tree Owner shall have thirty -(30) days
after service of notice to accept or reject Binding Arbitration
Failure to respond shall be deemed a formal refusal of Binding
Arbitration If accepted the parties shall agree on a specific
Arbitrator and shall indicate such agreement in writing and|109| The Arbitrator shall use the provisions of this Chapter
to reach a fair resolution of the Tree Claim and shall submit a
complete written report to the Complainant and the Tree Owner
This report shall include the Arbitrator's findings with respect to
Sections 9 12 025 and 9 12 030 of this Chapter, a pertinent list of
all mandated Restoration Actions with any appropriate conditions
concerning such actions, and a schedule by which the actions must
(C
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28be completed A copy of the Arbitrator's report shall be filed with
the City Clerk upon completion Any decision of the Arbitrator shall
be enforceable pursuant to the provisions of California Code of
Civil Procedure Section 1280 et seq
E Litigation|109| In those cases where Binding Arbitration is declined
by the Tree Owner then civil action may be pursued by the
Complainant for resolution of the View obstruction dispute under
the rights and provisions of this Chapter, and|109| The litigant must state in the lawsuit Binding
Arbitration was offered and not accepted, and a copy of the lawsuit
was filed with the City Clerk A copy of any order or settlement in
the lawsuit shall also be filed with the City Clerk
Section 9 12 050 Apportionment of Costs
A Cost of Mediation and Arbitration Unless the parties agree
otherwise, the costs and fees for Mediation and Arbitration shall be
subject to provisions of section 1284 2 of the California Code of Civil
Procedure which states among other things, that parties to an arbitration
should pay their own costs and a pro rata share of the Arbitrators fees
and costs
B Cost of Litigation To be determined by the Court or through
a settlement
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28C Cost of Restorative Action To be determined by mutual
agreement, or through Mediation, Binding Arbitration, court judgment, or
settlement
D Nothing in this chapter shall be construed to deny
compensation to a Tree Owner to which a Tree Owner would be entitled
under any other provision of law
Section 9 12 055 Liabilities
The issuance of Mediation findings, a Binding Arbitration report, or a court
decision shall not create any liability of the City with regard to the Restorative Actions to
be performed Failure of the City to enforce provisions of this Chapter shall not give
rise to any civil or criminal liabilities by or against the City
Section 9 12 060 Enforcement
A A violation of this Chapter is not a misdemeanor or
infraction The enforcement of this Chapter shall be by the private parties
involved The Complainant shall have the right to bring injunctive action to
enforce any Restorative Action ordered pursuant to this Chapter
B Under no circumstances shall the City have any
responsibility or obligation to enforce or seek any legal redress, civil or
criminal, for any decision made concerning a Tree Claim
Section 9 12 065 Limitations
A It is not the intent of the City in adopting this Chapter to
affect obligations imposed by an existing easement, already existing City
Council and/or Planning Commission entitlements, or a valid preexisting
covenant or agreement
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28B It is the intention of the City that all other portions of this
Chapter shall remain in effect in the event a portion of it is invalidated by
court action
Section 9 12 070 Trees Owned and Maintained By the City
Trees owned or maintained by the City are exempt from the provisions of
this Chapter Requests or complaints regarding Trees owned or maintained by the City
should be made in writing to the Public Works Director for consideration in accordance
with policies adopted by the City
SECTION 2 The Mayor of the City shall sign and City Clerk shall
attest to the passage of this ordinance The effective Date of this ordinance shall be
(30) days from the date of its adoption and prior to the expiration of fifteen (15) days
from the adoption hereof, the City Clerk, pursuant to Government Code Section
36933(c)(1), shall cause a summary of this ordinance to be published in The Culver City
News along with the record of the vote for approval and adoption and shall post at City
Hall, a certified copy of the full text of this Ordinance along with the record of the vote
thereon Additionally the City Clerk shall post a summary of this Ordinance in at least
three public places within the City pursuant to Section 517 of the City Charter
APPROVED and ADOPTED this
ALBERT VERA, Mayor
City of Culver City, California
ATTEST APPROVED AS TO FORM
CHRISTOPHER ARMENTA, CAROL A SCHWAB,
City Clerk City Attorney
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day of 2005City of Culver City, California
City Council Agenda Item Report
Attachment No 2
Meeting Date 7/26/04 Item Number 1-6
AGENDA ITEM Discussion of Issues and Options Related to View Protection,
View Preservation, and View Restoration in the City
Contact Person/Dept Mark Wardlaw/CDD Phone Number (310) 253-5706 and
and David McCarthy/City Attorney's Office (310) 253-5660
Fiscal impact Yes [NI No 11 GOneral Fund Yes. DJ No 11
,
Public Hearing g Action item Ds) Attachments, tx]
Public Notification On July 12, 20,04 , a postcard was mailed to all residents and
property owners within and generally adjacent mto,the Baldwin Hills (including -Hetzler
Road, 4Tomkins Way, Blair Hills, quirt' Crest,; and Youngsworth Property Owners), and
to residents who signed the petition protesting the 001 HOIlle- at 10639Youngsworth
Road Also, on July 12,, 2004 a postcard notice was sent to Marta Zarao6sa, Tdm,
Camarella, the Chamber of Commerce, Downtown Business Association and all Culver
City Homeowners Associations On July 12; 2004, email, notification was sent to the
Real Estate Advisory Brokers !Jet and the Master Notification List Also notice was
. , 4
published in the Culver City News on July 15,2064
, , ,
,
Department Appnival,
Susan Evans 7/15/04
GAO Approval
J'erry Fulwood 7121104 A ,
City Controller Approval
Marlee Chang 7/20/04/
yk
RECOMMENDATION
the issues and options related to view
restoration in the City, and provide staff
the City s ability to adopt rules to protect
The following report gives an
and five options that the City
In preparing these alternatives, staff
cities in California More specific detail
will be contained in future staff reports,
interested parties, City Attorney and
Culver City Homeowners Association
attendees of the subject matter (staff
, N I
That the City Council review and discuss
protection, view preservation, and view
with direction
BACKGROUND
The City Council requested staff to review
views and to describe the options available
overview of existing City policies and regulations
Council can consider for further study
reviewed view protection approaches of ten
on other cities' view protection approaches
depending on City Council direction
Additionally, in order to receive input from
Community Development staff attended the
meeting on January 15, 2004 to inform thesent more than 500 notices of this meeting to homeowners associations,
neighborhood watch captains and residential hillside properties, including
petitioners on Youngsworth and Drakewood Avenues)
DISCUSSION
This section contains a summary of different aspects of view shed protection, a
brief paragraph on legal issues, a review of existing policies and regulations, and a
discussion of the options
View Protection, View Preservation, and View Restoration
In their publication Aesthetics, Community Character, and the Law, the American
Planning Association (APA) defines two types of views First, is what the APA
calls the "view shed" which is the grand scenic vista, often visible from many
points The other is the view corridor", a glimpse of something such as a
mountain, historic building, or landmark through a narrower passage such as
between two buildings
In dealing with view protection issues, there are three interrelated terms that are
frequently used, often interchangeably, and need to be clarified View Protection
and View Preservation both attempt to prevent scenic vistas or view corridors from
being blocked by landscaping or further construction The third term requiring
definition is View Restoration, which is the act of restoring views by the removal or
modification of encroaching landscaping or illegally constructed buildings
The sample ordinances staff reviewed from other Cities (these included such
communities as Tiburon, Del Mar, Malibu, Rancho Pales Verdes, and Arroyo
Grande) can be generally divided into two types (I) those designed to protect
views from being blocked or encroached on by structures, and (II) those meant to
preserve or restore views blocked by trees or foliage Because of the different
regulatory bases on which each type rests, the two topics are usually addressed
separately Cities typically regulate the relationship between structure and view
through some sort of development review process Views blocked by landscaping
are addressed by 'view preservation ordinances that actually deal as much with
view restoration That is, they afford a property owner the ability, or at least a
procedure, to get nearby property owners to remove foliage that has over time
grown to block a scenic view
Legal Issues
California law does not establish an easement whereby a property owner is
obligated to protect an adjacent property owner s access to air, light, and views
Of course if life-safety issues are involved or zoning, lot size setback height
City of Culver City, California
City Council Agenda Item Reportrestrictions, open space, or similar rules and building and fire code requirements
exist, property owners must comply with those laws, and, to a certain extent,
access to air light and views are protected
A number of cities within California have adopted ordinances that provide greater
protection than that afforded by zoning, building, or fire regulations These cities
have used various approaches that have each withstood legal challenges
The court, in Associate Home Builders etc Inc v City of Livermore and Guinnane
v San Francisco City Planning Commission, held, in part, "The constitutional
measure by which we judge the validity of a land use ordinance assailed as
exceeding municipal authority under the police power is whether it has a real or
substantial relation to the public health, safety, morals, or general welfare
Conversely, it is unconstitutional only if its provisions are clearly arbitrary and
unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare Additionally, in Metromedia, Inc v City of San Diego, the court
cited the Tiburon case where the regulation of obstructing trees and tree growth
were determined to be a valid use of police power
Existing Policies and Regulations
The City Council has a number of options it can pursue Before discussing these
options, it is important to outline several facts that might influence any decision on
this matter
1 The Zoning Code contains development standards that limit height and bulk of
buildings in all zones Generally, the residential hillside areas of the City,
including Blair Hills and Culver Crest neighborhoods are in the R-1 a Zone
(Attachment 1) The maximum building height permitted in this district is two
stories and 26 feet (measured to the midpoint of the highest pitched roof
segment) with a maximum height of 30 feet to the highest ndgeline of a pitched
roof building Pursuant to Zoning Code Section 37-10 (g) building height is
measured from the average elevation around the building
A specialized Hillside Residential (HR) Zone was established for the previous
Vista Pacifica project proposed in the Blair Hills area (the property is now
referred to as the Baldwin Hills Scenic Overlook and is owned and operated by
State Department of Parks and Recreation) The HR zoning designation may
be applied to property with an average slope of 15% or greater Pursuant to
Zoning Code Section 37-12, this Zone requires the adoption of development
standards through a Comprehensive Plan which include proposed
landscaping building size, and intensity It also requires consideration of
existing residential units that might have their views obstructed The existing
zoning of Blair Hills and/or Culver Crest could be changed to HR if their
City of Culver City, California
City Council Agenda Item ReportCity of Culver City, California
City Council Agenda Item Report
average slope is determined to be 15% or greater and the City was willing to
develop a Comprehensive Plan (Attachment 2)
2 Culver City updated its General Plan in 1996 (Land Use, Circulation and Open
Space Elements) This document contains various policy statements that are
to guide planning decisions for the foreseeable future The Land Use Element
and the Open Space Element of the General Plan both have a number of policy
statements reflecting the need to protect the views both from and of hillside
property Two examples of these policies follow
The Open Space Element, Obiective 6, Policy 6A states Establish view shed
guidelines which protect the views of and from Culver City Park, Blair Hills, and
Culver Crest (Attachment 3) This Element does not specifically identify the
views to be protected
The Land Use Element, Oblective 26, Policy 26E states 'Protect views of and
from Culver Crest by establishing view shed guidelines" (Attachment 3)
Again, the views to be protected are not specified Presumably these views
would be identified in the view shed guidelines
3 At least part of the Culver Crest area is subject to Conditions, Covenants, and
Restrictions (CC&Rs) (Attachment 4) While portions of the CC&Rs are no
longer applicable, portions of them are still valid The City is not a party to the
CC&Rs and cannot act to enforce them (homeowners associations commonly
look to cities to enforce their CC&Rs, either because they believe the
jurisdiction has that authority or they are trying to avoid taking legal action
against their neighbors) However, a property owner or committees established
by the document can take legal action to enforce them Relevant references of
the CC&Rs are
Restriction No 5 states No building shall be erected until complete
plans have first been approved in writing by the Committee all such
plans shall show in detail height and elevation of any such structure
The Committee mentioned is to be elected by the property owners
Restriction No 10 states All buildings to be constructed on any lot in said
Tract shall either be of Ranch, Colonial, or Monterey type and no modern or
ultra-modern type house shall be permitted
ALTERNATIVES
The City Council has a wide range of choices to consider They are enumerated
M-City of Culver City, California
City Council Agenda Item Report
and ordered below from minor involvement to extensive involvement As was
stated above in preparing possible alternatives staff reviewed a sampling of what
other cities have done with this issue It appears that the more involved a city was
in attempting to protect views, the greater expense to the city in the way of staff
cost and litigation (actual cost impacts are not estimated in this report) The
options include
1 Rely on Existing Standards As previously stated, Culver City's Zoning Code
sections relating to setbacks and height restrictions affect views and view
preservation to some degree All areas of the City have some overall height
restriction, some of which are absolute while others may be granted an
exception by the City Council The current general height limits in the single-
family residential zones restrict building height to 26 to 30 feet The Zoning
Code also restricts development by lot size, front, rear and side-yard setback
and open space requirements
In addition, for developments in excess of four acres (or two acres after special
City Council and Planning Commission consideration), the City can establish a
Hillside Residential Zone The purpose of that category is to encourage and
provide a means for effectuating desirable hillside development and
conservation in areas where the average slope is 15% or greater, while
allowing variations in siting of low density residential uses to protect the City s
hillsides as valuable, visual open space and aesthetic resources
With this option, hillside property owners would be responsible for protecting
their views They would either have to find favorable legal precedent or seek
enforcement of CC&Rs, when applicable
This alternative represents the least cost to the City in terms of cost and impact
on City staff Should the City Council favor this approach, staff proposes the
General Plan be amended to clarify that the City s zoning, building and fire
regulations, by establishing height, setback, and open space restrictions act as
the view shed guidelines for the City, as mentioned in the General Plan
2 View Restoration - Private Right of Action Adopt an ordinance that sets out the
rights of property owners to seek restoration of views blocked by landscaping
Such an ordinance can provide direction to property owners seeking to protect
or reclaim views The ordinance would set out procedures for mediation and
arbitration (and possible litigation) but takes the City out of the process All
costs are borne by the private parties An example of this approach is the City
of Tiburon s View and Sunlight Obstruction' Ordinance (Attachment 5)
Tiburon s ordinance establishes a process or series of steps, for handling view
25City of Culver City, California
City Council Agenda Item Report
claims the most interesting aspect of which is the almost total absence of any
participation on the part of the City itself The ordinance requires that view
claimants first approach the offending neighbor informally in a procedure called
'Initial Reconciliation" The claimant must complete a view claim report for the
City s information and provide copies of letters, but is responsible on his or her
own for actually notifying and approaching the neighbor If this fails to resolve
the problem, the ordinance sets out procedures for mediation and arbitration
(voluntary on the part of the respondent) and finally, for litigation However, at
no point does the City become directly involved unless the landscaping
involved is City owned The claimant or respondent are responsible for finding
and paying for a mediation or arbitration service (the City will provide a list of
qualified persons), and for providing any expert information required, such as
arbonsts reports
This option only resolves views blocked by plants, not buildings The height
regulations contained in the Zoning Code would continue to be enforced
There would be moderate cost in formulating and adopting such an ordinance
with minimal ongoing cost, thereafter
3 View Protection - Establish More Restrictive Development Standards The City
could revise the Zoning Code as it applies to property with views The intention
of this alternative is to control more closely how buildings impact views Staff
would have to evaluate how best to implement this option without
overburdening the development process Such measures might include
changing the zone of the hillside property, creating an overlay zone that
addresses views and restricts heights, or changing how buildings are
measured Should the City pursue this option, there would be moderate to high
costs in formulating and adopting an ordinance and administrative procedures
with minimal to moderate staff costs for ongoing implementation Depending
on the methodology selected the timing of development processing and
permitting could be slowed for affected projects
4 Private Right of Action and View Protection - Establish More Restrictive
Development Standards Options 2 and 3 can be combined and view
obstruction by both landscaping and building would be addressed The City
would be responsible for the building related issues Private property owners
would bear the burden for landscape issues Should the City pursue this
option, there would be moderate to high costs in formulating and adopting an
ordinance and administrative procedures with minimal to moderate staff costs
for ongoing implementation Depending on the methodology selected, the
timing of development processing and permitting could be slowed for affected
projects
26City of Culver City, California
City Council Agenda Item Report
5 View Preservation and Restoration - Establish City-Enforced Building and
Vegetation Standards Instead of option 2, an ordinance could be adopted that
requires the City to protect views of private property owners and use its police
powers to remove offending landscaping This approach has been upheld by
the courts, but can be costly to the City in terms of staff time and litigation A
nearby city that has such regulations is the City of Rancho Palos Verdes
(Attachment 6) They have one staff member dedicated to enforcing their
ordinance and estimate their overall annual cost to be as high as $500,000
This choice would be the most costly in its formulation, as it has to be more
carefully worded Additionally, the staff cost would be higher as each project
and complaint would have to be investigated and resolved, with resolution
occasionally through the legal system The City Council could also anticipate
having to defend such an ordinance in court
In summary, depending on the decision of the City Council, the next steps could
include
1 Take no action
2 Direct staff to proceed with one of the options discussed above
3 If the City Council believes view shed protection, preservation and restoration
to be an urgent item, a 'moratorium could be established to prohibit new
construction until appropriate 'View Protection" measures are established
FISCAL ANALYSIS
Regarding the immediate preparation of the Culver City Municipal Code Ordinance
revisions, staff estimates a minimum of 100 hours of work will be required of the
City staff and/or consultants to develop the standards and to present the
amendments to the Planning Commission and City Council Completion of a
moratorium will require an estimated 35 hours Total cost estimates for the initial
ordinance preparation range from approximately 8 500 to 12,000 The cost for
implementation of a moratorium is estimated at $3 000 Thereafter, additional
ongoing implementation costs can be expected as described for each option
Should City Council direct staff to implement and proceed with this work effort, staff
will return to City Council with a budget amendment (FY '04- 05) to fund the work
ATTACHMENTS
1 R-la Zoning Regulations
2 Hillside Residential Zoning Regulations
273 General Plan Open Space Element Policy 6A, Objective 6 and General Plan
Land Use Element Policy 26E, Objective 26
4 Culver Crest CC&Rs
5 City of Tiburon View and Sunlight Protection" Ordinance
6 City of Rancho Palos Verdes Ordinance regulating views
MOTION
That the City Council
A Direct staff to undertake one of the following options
1 Rely on Existing Standards Staff will prepare a General Plan Amendment
for Planning Commission and City Council consideration that clarifies that
the view sheds identified in the General Plan are adequately protected by
building zoning and fire regulations, or,
2 View Restoration - Private Right of Action Staff will formulate an Ordinance
for City Council consideration to allow property owners to seek restoration of
views with only nominal City involvement, or,
3 View Protection - Establish More Restrictive Development Standards Staff
will devise modifications to the Zoning Code and development review
process and regulations for consideration and approval by both the Planning
Commission and City Council, or,
4 Private Right of Action and Establish More Restrictive Development
Standards (This is a combination of Option 2 and Option 3, above, if the
City Council wishes to pursue view shed issues for both landscaping and
buildings), or
5 View Preservation and Restoration - Establish City-Enforced Building and
Vegetation Standards An Ordinance will be presented to the City Council
that requires City staff to actively use its police powers to protect views and
remove offending landscape or structures Additionally, budget
amendments would be forthcoming to provide staffing for this new program,
or,
6 Take a different or alternative action from any of options listed above
B If the City Council elects one of the Options 2 through 6, direct staff to
implement the selected option by
City of Culver City, California
City Council Agenda Item Report1 Prepannq a moratorium to prohibit new construction until appropnate View
Protection measures are established, or,
2 Do not prepare a moratorium and go through the typical or standard
process
City of Culver City, California
City Council Agenda Item ReportREGULAR MEETING OF Ti-TE Page 14 of 18
July 26, 2004
Item I 6
-
Discussion of Issues and Options Related to View Protection, View
Preservation, and View Restoration in the City
Mark Wardlaw, Deputy Community Development Director, gave the staff
report
The following members of the audience addressed the City Council
Charles Stephens
Dee Seehusen
Ed Renselaer
Mitch Glickman
Christopher Armenta, City Clerk, read written comments from
John Kuechle
Linda Shahinian
Mary Ann Greene
Livio Sanchez
Mark Wardlaw, Deputy Community Development Director, gave the staff
report
Councilmember Silbiger proposed the following motion That the City
Council refer this item to the Planning Commission
There was no second to Councilmember Silbiger's motion
The following motion was proposed
MOVED BY COUNCILMEMBER GROSS AND SECONDED BY COUNCILMEMBER CORLIN,
THAT THE CITY COUNCIL DIRECT STAFF TO FORMULATE AN ORDINANCE FOR CITY
COUNCIL CONSIDERATION TO ALLOW PROPERTY OWNERS TO SEEK RESTORATION OF
VIEWS WITH ONLY NOMINAL CITY INVOLVEMENT AND DIRECT STAFF NOT TO
PREPARE A MORATORIUM AND GO THROUGH THE TYPICAL OR STANDARD PROCESS
30
mhtml http //www culvei city oig/uploads/mmutes/9152004102525AMm040726 mht 10/25/2004o0o
Item
MOVED BY COUNCILME ER VERA, SECONDED BY UNCILMEMBER GROSS AND
UNANIMOUSLY CAR D, THAT THIS ITEM BE TABL
31
o0o
1\12,k_I U J-1.t11‘. IV LE, E, 1 11N kJ 'Jr I Co
155%? L sA•-•• .1. J. •-•
July 26, 2004
Item I 6
(continued)
Mark Wardlaw, Deputy Community Development Director, clarified the
ordinance mentioned in the proposed motion will only deal with
restoration of views blocked by landscaping, not by buildings
Discussion ensued regarding agendizing a future agenda item to
identify hillside areas, requiring that neighbors be notified
regarding any proposed developments, and developing arbitration and
mediation methods for neighbors to utilize
Following aiscussion, Ene proposea motion was witharawn ana Ene
following motion was voted on
MOVED BY COUNCILMEMBER GROSS, SECONDED BY COUNCILMEMBER CORLIN AND
UNANIMOUSLY CARRIED, THAT THE CITY COUNCIL DIRECT STAFF TO BRING BACK
CONCEPTS WHICH DEAL WITH VIEW PROTECTION AND VIEW RESTORATION FROM
BOTH LANDSCAPING AND BUILDINGS
Considerat •n of the City Council to Accept the Wo Performed by
Zondiros-Pen gsula Landscaping, JV Construction or the Tellefson
Park Improvemen Project (Project No P-790)
Discussion ensued re
Washington Place to hel
Tellefson Park Further
project and liquidated damag
staff to provide information
providing fencing along
ildren's play area at
ensued regarding delays in this
id The City Council requested
rding these items
rding feasibility
protect the
scussio
Following discussion, following •tion was made
mhtml http //www culyeicity org/uploads/mmutes/9152004102525AMm040726 mht 10/25/2004Attachment No 3
Agenda Item No 6 November 10, 2004
Staff Report
STUDY SESSION DISCUSSION OF PROPOSED VIEW
PRESERVATION ORDINANCE
INTRODUCTION
The purpose of this Study Session is to present and discuss the
result of staff's research, and to seek comment from both the
Planning Commission (the 'Commission ) and the public on a
proposed ordinance providing a procedure to address conflicts
when opportunities for those views are obstructed by trees The
proposed ordinance would amend Article 9, General Regulations of
the Culver City Municipal Code by adding Chapter 9 12
BACKGROUND
On July 26, 2004, the City Council held a public meeting to consider
and discuss the City s ability to adopt regulations to protect views
At that meeting, staff provided an overview of existing City policies
and regulations and presented the following five options for City
Council consideration
1 Rely on Existing Standards Prepare a General Plan
Amendment that clarifies that the views identified in the General
Plan are adequately protected by building zoning and fire
regulations, or
2 View Restoration - Private Right of Action Formulate an
ordinance to allow property owners to seek restoration of views
with only nominal City involvement or,
3 View Protection - Establish More Restrictive Development
Standards Devise modifications to the Zoning Code and
development review process and regulations, or
4 Private Right of Action and Establish More Restrictive
Development Standards (This is a combination of Option 2
'3 2___Agenda Item No 6
November 10, 2004
Page 2 of 6
and Option 3 above, that involve view issues for both
landscaping and buildings), or
5 View Preservation and Restoration - Establish City-Enforced
Building and Vegetation Standards Present an ordinance that
requires City staff to actively use its police powers to protect
views and remove offending landscape or structures, or
6 Take a different or alternative action from any of options listed
above
The City Council staff report outlining the issues and options related
to view protection, view preservation, and view restoration was
provided to the Commission under separate cover on October 25,
2004 At the conclusion of their discussion, the City Council
directed staff to undertake Option No 2 and prepare a View
Preservation ordinance that sets out a procedure for property
owners located within hillside areas of the City to seek restoration of
views blocked by landscaping through a private right of action
process
The City Council also asked staff to investigate the possibility of this
same private right of action process related to views obstructed by
buildings
DISCUSSION
Based on the City Council s direction, staff conducted further
research on the issue of private right of action pertaining to both
landscaping and buildings
Private Right of Action- Views Obstructed by Landscaping
In regard to views obstructed by landscaping example ordinances
with the private right of action were found in the Town of Tiburon
City of Berkeley, and City of Santa Barbara (Attachment Nos 1, 2,
and 3)
Simply defined, a private right of action' is a progressive process
created by the City to enable a property owner/resident to resolve
conflicts pertaining to views obstructed by landscaping at a civil
level and without City involvement
S3Agenda Item No 6
November 10 2004
Page 3 of 6
The primary concepts of the proposed View Preservation ordinance
are summarized below (Attachment No 4, proposed View
Preservation ordinance)
Intent The intent of proposed View Preservation ordinance
(through a private right of action' process) is to provide direction to
property owners/residents seeking to protect or reclaim a view and
set out procedures for mediation and arbitration (and possible
litigation) All costs would be borne by private parties The City
would not have any obligation to enforce the view preservation
provisions of the code
-
The proposed ordinance is crafted in a way that prevents Culver
City from being compelled to enforce the regulations but allows an
affected owner/occupant to seek legal redress in accordance with a
defined process The rationale for proposing this specific type of
ordinance is that it creates a means to address a problem with little
to no involvement of City resources
One of the issues that staff considered in developing this ordinance
was the amount of information contained in the ordinance to
effectively resolve view concerns through the proposed process
Specifically, detailed information such as the provision of design
standards, methods, illustrative information, and specifications
Staff believes that this subject can be handled adequately through
very simple and direct ordinance/procedures This is in line with
City Council intent of simplicity
Process The proposed ordinance seeks to provide guidance and
options to property and landscape owners as well as mediators and
arbitrators in order to avoid wholesale landscape removal when
trimming is possible Specific steps must be taken and documented
to restore the view
• A complaining party must first notify the offending owner of
landscape or tree-owner of the problem and attempt to work it
out
• If this is not successful then the complaining party must propose
mediation
• If mediation is not accepted or fails, binding arbitration must be
offered
• If this arbitration is not accepted, then the complaining party may
bring an action in court
3`fAgenda Item No 6
November 10 2004
Page 4 of 6
Applicability The proposed View Preservation ordinance applies
to hillside areas in the City such as Blair Hills and Culver Crest
Staff conducted site visits in Blair Hills and Culver Crest to assess
the areas that had a view Photographs were taken from various
residences in both areas illustrating some of the views and views
that are obstructed by trees (Attachment No 5) The hillside areas
to be governed by this ordinance are illustrated on the attached
map (Attachment No 6)
In regard to timing, the proposed ordinance states that a person
may seek to preserve or restore certain views that existed at any
time since that person purchased or occupied a property (this
requires documentation by the view seeker)
Private Right of Action - Views Obstructed by Buildings
Staff did not find a sample ordinance where a City granted a private
right of action process for views obstructed by buildings or
structures In consulting with both the City Attorney for Culver City
and offices of the City Attorney for vanous other cities, it was
determined that a private right of action process for views
obstructed by buildings would cause numerous problems for the
City as it could be seen as ceding an aspect of the City s police
powers
The California Constitution grants cities certain police powers such
as control of zoning regulations, issuance of building permits, and
the right to establish regulations defining property maintenance
standards The Civil Code and the Code of Civil Procedure of the
State defines how and when disputes between neighbors can be
adjudicated
Unless a City uses its police powers to define views as important to
the City as a whole obstruction of views is not a violation of law If
a City law does not specifically provide for private enforcement of
that law, then even if that City adopts regulations that prohibit view
obstruction, no civil action between neighbors can be initiated based
on the City ordinance Legal action against a City can be initiated in
an attempt to compel it to enforce its own regulations
Theoretically an ordinance with a private right of action process
could be created related to buildings However, an applicant for a
building permit relies on a City s proper use of its police powers
when a building permit is issued It would create tremendous
problems if the City, in good faith, issued a building permit, and a
3-5-Agenda Item No 6
November 10, 2004
Page 5 of 6
neighbor had the right to sue the builder, due to view obstruction
after the building was built
Many cities control the issue of views blocked by buildings through
the development review process, a process which can be quite
contentious Culver City has a major emphasis on speedy permit
processing which could be obviated by adding view protection
review to that process Therefore the City Council did not seem
inclined to add any new steps to permit processing
GENERAL PLAN CONSISTENCY
The Land Use and Open Space Elements of the General Plan
contain various policy statements reflecting the need to protect the
views from and of hillside property Two examples of these policies
include
• The Open Space Element, Obiective 6, Policy 6A
Establish view shed guidelines which protect the views of
and from Culver City Park, Blair Hills, and Culver Crest'
• The Land Use Element, Obiective 26, Policy 26E Protect
views of and from Culver Crest by establishing view shed
guidelines
These policies call for the City to take action to establish view shed
guidelines, in part, the proposed ordinance implements some of
these policies
ENVIRONMENTAL DETERMINATION
The proposed View Preservation ordinance is not a project as
defined by Section 15378 of the CEQA Guidelines The proposed
activity is general procedure making and will not result in issuance
of entitlements The activity does not have the potential for
resulting in direct physical change in the environment Therefore
the proposed View Preservation ordinance is not subject to CEQA
and no environmental analysis is required
C,Agenda Item No 6
November 10 2004
Page 6 of 6
PUBLIC NOTIFICATION
This Study Session was noticed in the Culver City News and
postcards were mailed to homeowners associations property
owners and occupants within Culver Crest and Blair Hills area and
other parties who have expressed interest in this topic In addition,
Ms Bobbi Gold a resident of Blair Hills has expressed an interest in
this subject and has submitted her comments (Attachment No 7)
CONFLICT OF INTEREST
Commissioner Sheila Thomas has a conflict of interest on this item
as she is a property owner within 500 feet of the limited area that
this ordinance would apply
NEXT STEPS
Based on input provided by the Planning Commission, staff
anticipates returning to the City Council for a duly noticed Public
Hearing on this item
Prepared by Approved by
\iN
‘,
1N IteiCk
Susan Yun r nkar Wardlaw
Associate Planner Deputy Community Development
(310) 253-5755 Director
Attachments
1 Town of Tiburon regulations
2 City of Santa Barbara regulations
3 City of Berkeley regulations
4 Proposed City of Culver City View Preservation Ordinance
5 Photographs of Views in Blair Hills and Culver Crest
6 Map of Hillside Areas in the City
7 Email comments from Ms Bobbi Gold Resident dated 9/20/04A royal of Plan=
Vice-Chair Lamm moved, se ded by Commissione uranaka, to adopt Resolution No
2004-P007 as amended
The motion carried the following roll call vote
AYES iggs, Muranaka, Lamm, Maim
NOES None
ABS iT Thomas
Commissio esolution No 4-P007
Planning Commission Meeting-Minutes
November 10 2004
Page 10 of 13
ommissioner Muranaka
-2 Definitions Arterial Street might include an opening sentence that indicate
a trial street includes both primary and secondary arterial streets
• Clan he language in 1-a of Street Wall Requirements
Chair Malsin
• Clarify the langb.ge under Use Regulations to indicate permitted ses shall be subject
to all requisite enti ment processes
Vice-Chair Lamm
• ThP entire
commercial
ctrA
o Jefferson
hPtwPc,
Overland
and
Sepulveda
and the
area along East Washington ith larger par s that are not adjoining residences
should be considered for addition
• Advisable to mention affordable hous • • help eliminate questions and criticisms and
remind people it is a consideration
6 Study Session Discussion of Proposed View Preservation Ordinance
Ms Yun presented the staff report and introduced Brian McNabb, Planning Consultant who
assisted with the project
Chair Malsin called on persons who submitted comment cards
Bobbi Gold
• Trees have certain important functions that sometimes supersede the supposed right to
a view
• Suggested the language be balanced between the rights of tree owners as well as view
holders
Charles Stephens
• Indicated trees are destroying people s views and there is currently no way to address
the problem
Chair Maim read correspondence from the following authors
35Planning Commission Meeting Minutes
November 10 2004
Page 11 of 13
Betty Tolin, Elston and Bertha Bernly, and Ed Ensleer expressed support for the proposed
ordinance to protect people who own view properties from view obstruction caused by
foliage and landscaping
Joddy Boyer and Howard Glickman expressed concerns about view obstruction related to
second-story additions and decks
Chair Malsin requested comments from staff
Ms Yun
• Clarified that this ordinance deals s pecifically with views obstructed b y landscaping not
those impacted by buildings or structures
Vice-Chair Lamm
• A hillside ordinance to supplement the City's existing building and zoning codes is worth
considering
• The basic approach should be to establish a process including a series of steps
beginning with neighbors trying to resolve the issue on their own before proceeding to
mediation, et cetera
• The value of trees should be front and center along with the value of views
• Supportive of starting with the least drastic measures such as trimming and thinning
• Suggested reversing No s 1 and 2 on Page 2 of 10 to provide recognition of the value
of good landscaping
• Initially was concerned trees were not being adequately considered, but the proposed
ordinance as discussed seems to be a reasonable approach
Commissioner Muranaka
• Include language to indicate the least drastic measures can accommodate restoration
of an obstructed view
• The reference to 'active use area' should be removed throughout the entire ordinance
• A provision for voluntary agreement between the parties should be included
• Under A-3 suggested less invasive methods of view restoration such as crown
reduction be employed since topping is sometimes very destructive to trees
• The tree claim preparation should apply immediately after the initial reconciliation
process fails
Chair Maim
• The ordinance seems very reasonable
• Appropriate to provide property owners a mechanism to protect a valuable part of the
experience of their homes
• Language should be included to emphasize that trees are a great benefit to the
community
• The least aggressive solutions should be attempted before demanding removal of
trees
3gther Business
law advised the Commission of the upcoming meetings and agenda ite Mr W
Vice-Chair Lamm moved, seconded by
12 18 a m to December 8, 2004 at 7 00
City Hall The motion was unanimously ap
n the Mike Balkman Council Chambers at
mmended staff for their excellent job presenting some ry complicated
D SCOTT MALSIN, CHAIRPE- ON
PLANNING COMMISSION
CITY OF CULVER CITY, CALIFORNI
LI 0
•
Chair Malsin
topics
8 Adjournment
mmissi er Muranaka, to adjourn the meeting at
•
Planning Commission Meeting Minutes
November 10 2004
Page 12 of 13
• In Section B modify the language 'such evidence must show absence to 'must
prove the absence to indicate photographic evidence is not necessary
• What is Culver City s policy if a complaint of this nature is made against it'?
• Should trees in the public right-of-way which are part of an orderly program intended to
create a specific aesthetic for the City be considered differently from trees that grow in
a park'?
• The proposed ordinance is reasonable, it places a high value on trees and recognizes
view preservation is a fair concept
Mr Wardlaw
• Staff discussed how to deal with trees in the public nght-of-way because street trees
provide various be qefits to the pubho good, and a decision was 'rade to exe7p # Hie
City in that regard
• A City park serves a very different purpose, so the trees in public parks should be
considered differently than the effects of a pnvate patty's trees when considenng view
impacts
The consensus of the Commissioners was to forward the discussed revisions to the City
Councilh - 1 PL 1 1 pose ind punctples frtge t or i
TITLE IV LAND IMPROVEMENT AND USE
-Town Dr Ti buratt
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15-1 Purpose and principles
(a) The purposes of this chapter are to
(1) Establish the right of persons to preserve views or sunlight which existed at any time since
they purchased or occupied a property from unreasonable obstruction by the growth of trees
(2) Establish a process by which persons may seek restoration of such views or sunlight when
unreasonably obstructed by the growth of trees or other vegetation (see definition of Tree )
(b) The rights and the restorative process are based upon the following general principles
(1) The to vn iecognizes that i esidents pi opei ty ownets and businebbes ulierisn tneir outward
views from the Tiburon Peninsula and that they also cherish the benefits of plentiful sunlight
reaching their buildings and yards The town recognizes that both outward views and plentiful
sunlight reaching property contribute greatly to the quality of life in Tiburon and promote the
general welfare of the entire community
(2) The town also recognizes the desire of many of its residents property owners and businesses
for beautiful and plentiful landscaping including trees The town realizes that this desire may
sometimes conflict with the preservation of views and sunlight and that disputes related to view
or sunlight obstruction are inevitable
(3) Owners and residents should maintain trees on their property in a healthy condition for both
safety reasons and for preservation of sunlight and outward views Before planting trees owners
and residents should consider view and sunlight blockage potential both currently and at tree
maturity Persons have the right to seek civil remedies when threatened by dangerous tree
growth
(4) The town shall establish a process by which persons may seek to preserve and restore views
or sunlight which existed at any time since they purchased or occupied property from
unreasonable obstruction by the growth of trees The town shall also establish a list of factors to
be considered in determining appropriate actions to restore views or sunlight
(5) When a view or sunlight obstruction dispute arises the parties should act reasonably to
resolve the dispute through friendly communication thoughtful negotiation compromise and
other traditional means such as discussions with the appropriate neighborhood or homeowner
association Those disputes which are not resolved through such means shall follow the
procedure established herein
(6) It is the intent of the town that the provisions of this chapter receive thoughtful and reasonable
application It is not the intent of the town to encourage clear cutting or substantial denuding of
any property of its trees by overzealous application of provisions of this chapter (Ord No 379
N S § 3 (part))
ATTACHMENT NO 4
LHTITLE IV LAND IMPROVEMENT AND USE
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 2 Definitions
For the purpose of this chapter the meaning and construction of words and phrases is as follows
Active use area means the most frequently occupied portion or portions of a commercial
building from which views are available
Arbitrator means a neutral person who will conduct a process similar to a trial and who will hear
testimony consider evidence and make a binding decision for the disputing parties
Binding arbitration means a legal procedure as set forth in section 1280 et seq of the Code of
Civil Procedure
Complaining party means any property owner (or legal occupant with written permission of the
property owner) who alleges that trees located on the property of another person are causing
unreasonable obstruction of his or her pre existing views or sunlight
Mediator means a neutral objective third person who assists people in finding mutually
satisfactory solutions to their problem
Person means any individual corporation partnership firm or other legal entity excluding the
Town of Tiburon
Primary living area means the portion or portions of a Tesidence from which a view is observed
most often by the occupants relative to other portions of the residence The determination of
primary living area is to be made on a case by case basis
Protected tree means any of the following
Heritage tree meaning any tree which has a trunk with a circumference exceeding sixty inches
measured twenty four inches above the ground level
Oak tree including coast live oak blue oak California black oak interior live oak canyon live
oak Engelmann oak or valley oak tree
Dedicated tree meaning a tree of special significance so designated by resolution of the town
council
Removal means the elimination of any tree from its present location
Restorative action means any specific requirement to resolve a tree dispute
Stump growth means new growth from the remaining portion of the tree trunk the main portion
of which has been cut off
Sunlight means the availability of direct or indirect sunlight to the primary living area of a
residence
Thinning means the selective removal of entire branches from a tree so as to improve visibility
through the tree and/or improve the tree s structural condition
Topping means elimination of the upper portion of a tree s trunk or main leader
Tree means any woody plant with the potential to obstruct views or sunlight including but not
limited to trees shrubs hedges and bushes References to tree shall include the plural
Tree claim means the written basis for arbitration or court action under the provisions of this
chapter
Tree owner means any person owning real property in Tiburon upon whose land is located a
tree or trees alleged by a complaining party to cause an unreasonable obstruction
Trimming means'the selective removal of portions of branches from a tree so as to modify the
tree(s) shape or profile or alter the tree s appearance
View means a sdene from the primary living area of a residence or the active use areas of a
nonresidential building The term view includes both upslope and downslope scenes but is
4-2-,
http //oi dlink com/codes/tiburon/ DATA/TITLE04/Chapter 15 VIEW AND SUNLIG 9/14/200415 2 Definitions
1--Ige 2 Ot
generally medium or long range in nature as opposed to short range Views include but are not
limited to skylines bridges landmarks distant cities distinctive geologic features hillside
terrains wooded canyons ridges and bodies of water
Some additional examples are
(1) San Francisco Bay (including San Pablo Bay Richardson Bay and islands therein)
(2) The San Francisco-Oakland Bay Bridge
(3) The Golden Gate Bridge
(4) The Richmond San Rafael Bridge
(5) Mount Tama!pais
(6) The Tiburon Peninsula or surrounding communities (including the city of San Francisco)
Windowing means a form of thinning by which openings or windows are created to restore
views and or sunlight (Ord No 379 N S § 3 (part))
iltin //rn 11 rnm/rnriech ihm nn/ -11 A T A /TTTT 1 c TVGAAT A 1IT1 QT TNTT Tr! CI /1 tint-1n ITITLE IV LAND IMPROVEMENT AND USE
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 3 Rights establ.shed
(a) Persons shall have the right to preserve and seek restoration of views or sunlight which
existed at any time since they purchased or occupied a property when such views or sunlight are
from the primary living area or active use area and have subsequently been unreasonably
obstructed by the growth of trees
(b) In order to establish such rights pursuant to this chapter the person must follow the process
established in this chapter In addition to the above rights private parties have the right to seek
remedial action for imminent danger caused by trees
(c) All D ers o n s are advi qpri thAt the alteration
removal
a nd p l ant i ng of certa n t ccs eq.11es a
permit under chapter 15A of the Tiburon Municipal Code (Trees) The applicability of chapter 15A
should be determined prior to any action on trees (Ord No 379 N S § 3 (part))
LH
littp lloidlink com/codes/tibuton/_DATA/TITLE04/Chaptei 15 VIEW AND SUNLIG 9/14/2004I -F 1_)111Gc1 011 . 1.Ule OUSISLICLIULL 011.1D1LCCI
TITLE IV LAND IMPROVEMENT AND USE
Chaptei 15 VIEVV AND SUNLIGHT OBSTRUCTION FROM TREES
15 /I Unreasonable obstruction prohibited
(a) No person shall plant maintain or permit to grow any tree which unreasonably obstructs the
view from or sunlight reaching the primary living area or active use area of any other parcel of
property within the Town of Tiburon
(b) Because the maintenance of views and sunlight benefits the general welfare of the entire
town any unreasonable obstruction of views or sunlight from the primary living area or active use
area shall also constitute a public nuisance (Ord No 379 N S § 3 (part))
Mtn /AN dlualc comicodesitibuton/ DATAITITLEN/Chanter 15 VTFW AND cT TNT Tn.TITLE IV LAND IMPROVEMENT AND USE
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 5 Ci iteria for determining unreasonable obstruction
The following criteria are to be considered (but are not exclusive) in determining whether
unreasonable obstruction has occurred
(a) The extent of obstruction of pre existing views from or sunlight reaching the primary living
area or active use area of the complaining party both currently and at tree maturity
(b) The quality of the pre existing views being obstructed including obstruction of landmarks
vistas or other unique features
(c) The extent to which the trees interfere with efficient operation of a complaining party s pre
cxist -g sole, eneigy systems
(d) The extent to which the complaining party s view and/or sunlight has been diminished over
time by factors other than tree growth (Ord No 379 N S § 3 (part))
,
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TITLE IV LAND IMPROVEMENT AND USE
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15-6 Criteria for detei mining appi opi late restorative action
When it has been determined that unreasonable obstruction has occurred then the following
unweighted factors shall be considered in determining appropriate restorative action
(a) The hazard posed by a tree or trees to persons or structures on the property of the
complaining party including but not limited to fire danger and the danger of falling limbs or trees
(b) The variety of tree its projected rate of growth and maintenance requirements
(c) Aesthetic quality of the tree(s) including but not limited to species characteristics size
growth form and vigor
(d) Location with respect to overall appearance design or use of the tree owner s property
(e) Soil stability provided by the tree(s) considering soil structure degree of slope and extent of
the tree s root system
(f) Privacy (visual and auditory) and wind screening provided by the tree(s) to the tree owner and
to neighbors
(g) Energy conservation and or climate control provided by the tree(s)
(h) Wildlife habitat provided by the tree(s)
(i) Whether trees are protected trees as defined in section 15 2 of this chapter (Ord No 379
NS § 3 (part))
47
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9/14M/14TITLE IV LAND IMPROVEMENT AND USE
Chapter 15 VIEW AND_SUNLIGHT OBSTRUCTION FROM TREES
15 7 Types of restorative action
(a) Restorative actions include but are not limited to the following
(1) Trimming
(2) Thinning or windowing
(3) Topping
(4) Removal with replacement plantings
(5) Removal without replacement plantings
(b) In all cases the documentable extent of view or sunlight existing at any time during the tenure
of the present owner or legal occupant is the maximum limit of restorative action which may be
required
(c) Restorative action may include written conditions (including ongoing maintenance) and
directions as to appropriate timing of such actions and may be made to run with the land and
apply to successors in interest Where removal is required replacement by appropriate species
should be considered
(d) In cases where trimming windowing or other restorative action may affect the health of a tree
which is to be preserved such actions should be carried out in accordance with standards
established by the International Society of Arboriculture for use in the state of California (Ord
No 379 N S § 3 (part))
http Hot dunk com/c o des/tib In on/_DATA/TITLE04/Chapter_1 5 VIEW_AND_SUNLIG 9/14/2004TITLE IV LAND IMPROVEMENT AND USE
Chaotei 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 3 Town guidelines concerning restorative action
The Town of Tiburon provides the following general guidelines concerning restorative actions
(a) Undesirable trees By reason of their tall height at maturity rapid growth dense foliage
shallow root structure flammability breakability or invasiveness certain types of trees have been
deemed undesirable by the town including Blue Gum Eucalyptus Coast Redwood Monterey
Pine Monterey Cypress trees or any other tree which generally grows more than three feet per
year in height and is capable of reaching a height of over thirty five feet at maturity When
considering restorative action for undesirable trees aggressive action is preferred
kb) ProLeuteu uees Tlie Town of Tiouron nas oesignatea certain trees to De protected trees
defined in section 15 2 Any alteration or removal of protected trees will require a permit from the
town s planning director pursuant to chapter 15A of the Tiburon Municipal Code
(c) Stump growth Stump growth generally results in the hazard of weak limbs and its protection
is not desirable When considering restorative action for stump growth aggressive action is
preferred Restorative action which will result in future stump growth should be avoided
(d) Trimming Trimming is the most minor form of physical restorative action This option is
recommended when minor unreasonable obstruction has occurred provided that ongoing
maintenance is guaranteed
(e) Thinning or windowing When simple trimming will not resolve the unreasonable obstruction
thinning or windowing may be necessary These should be supervised by a certified arbonst
(f) Topping Topping as a restorative action should be used with caution Topping can have
deleterious effects on a tree s health appearance and cost of maintenance Topping frequently
results in stump growth Tree removal with replacement plantings may be a preferable
alternative
(g) Removal Tree removal may be required where such removal is essential to preserve pre
existing views or sunlight While normally considered a drastic measure tree removal can be the
preferred solution in many circumstances
(h) Maintenance Ongoing tree maintenance requirements are strongly recommended as part of
restorative action in order to achieve lasting preservation of pre existing views or sunlight
(i) Permanence Conditions of restorative action should be recorded and run with the land to help
guarantee permanent preservation of pre existing views and sunlight (Ord No 379 N S § 3
(part))
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TITLE IV LAND IMPROVEMENT AND USE
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 9 Process Tor resolution of obstruction disputes
The following process shall be used in the resolution of view and sunlight obstruction disputes
between parties
(a) (1) Initial reconciliation A complaining party who believes that tree growth on the property of
another has caused unreasonable obstruction of views or sunlight from the primary living area or
active use area shall notify the tree owner in writing of such concerns
(2) The notification should if possible be accompanied by personal discussions to enable the
complaining party and tree owner to attempt to reach a mutually agreeable solution If personal
discussions
fa l reig hbo hood assoc ato m s —ay be n rg 'o ass s, v'h 'k e esolution of the
obstruction dispute
(3) For trees located on town owned property see section 15 16
(b) (1) Mediation If the initial reconciliation attempt fails the complaining party shall propose
mediation as a timely means to settle the obstruction dispute
(2) Acceptance of mediation by the tree owner shall be voluntary but the tree owner shall have
no more than thirty days from service of notice to either accept or reject the offer of mediation If
mediation is accepted the parties shall mutually agree upon a mediator within ten days
(3) It is recommended that the services of a professionally trained mediator be employed The
county of Mann provides professional mediation services at a nominal cost
(4) The mediation meeting may be informal The mediation process may include the hearing of
viewpoints of lay or expert witnesses and shall include a site visit to the properties of the
complaining party and the tree owner Parties are encouraged to contact immediate neighbors
and solicit input
(5) The mediator shall consider the purposes and policies set forth in this chapter in attempting to
help resolve the dispute The mediator shall not have the power to issue binding orders for
restorative action but shall strive to enable the parties to resolve their dispute by written
agreement in order to eliminate the need for binding arbitration or litigation (Ord No 379 N S §
3 (part))
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rituc I ui
TITLE IV LAND IMPROVEMENT AND USE
Chaptei 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15-10 Tree claim preparation
(a) In the event that the initial reconciliation process fails and mediation either is declined by the
tree owner or fails the complaining party must prepare a tree claim and provide a copy to the
tree owner in order to pursue either binding arbitration or litigation under the authority
established by this chapter
(b) A tree claim shall consist of all of the following
(1) A description of the nature and extent of the alleged obstruction including pertinent and
corroborating physical evidence Evidence may include but is not limited to photographic prints
negatives or slides Sucn evidence must show absence of the obstruction at any documentable
time during the tenure of the complaining party Evidence to show the date of property acquisition
or occupancy by the complaining party must be included
(2) The location of all trees alleged to cause the obstruction the address of the property upon
which the tree(s) are located and the present tree owners name and address
(3) Evidence of the failure of initial reconciliation as described in section 15 9 to resolve the
dispute The complaining party must provide physical evidence that written attempts at
reconciliation have been made and have failed Evidence may include but is not limited to
copies of and receipts for certified or registered mail correspondence
(4) Evidence that mediation as described in section 15 9 has been attempted and has failed or
has been declined by the tree owner
(5) Specific restorative actions proposed by the complaining party to resolve the unreasonable
obstruction (Ord No 379 N S § 3 (part))
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Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
1 5 11 Binding arbitration
(a) In those cases where the initial reconciliation process fails and where mediation is declined by
the tree owner or has failed the complaining party must offer in writing to submit the dispute to
binding arbitration and the tree owner may elect binding arbitration
(b) The tree owner shall have thirty days from service of notice to accept or reject binding
arbitration If accepted the parties shall agree on a specific arbitrator within twenty one days and
shall indicate such agreement in writing
(c) The arbitrator shall use the provisions of this chapter to reach a fair resolution of the tree claim
and ORO submit a rninnlete writtPn rppnrt to the complaining party and the tree owner This
report shall include the arbitrator s findings with respect to sections 15 5 and 15 6 of this chapter
a pertinent list of all mandated restorative actions with any appropriate conditions concerning
such actions and a schedule by which the mandates must be completed A copy of the
arbitrators report shall be filed with the town attorney upon completion Any decision of the
arbitrator shall be enforceable pursuant to the provisions of Code of Civil Procedure section 1280
et seq (Ord No 379 N S § 3 (part))
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TITLE IV LAND IIVIPPOVEMENT AND USE
Chaptei 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 12 Litigation
(a) In those cases where binding arbitration is declined by the tree owner then civil action may
be pursued by the complaining party for resolution of the view or sunlight obstruction dispute
under the rights and provisions of this chapter
(b) The litigant must state in the lawsuit that arbitration was offered and not accepted and that a
copy of the lawsuit was filed with the town attorney A copy of any order or settlement in the
lawsuit shall also be filed with the town attorney (Ord No 379 N S § 3 (part))
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Chapter 15 VIEW AND SUNLIGHT OBSTPUCTION FROM TREES
15-13 Apportionment of costs
Cost of mediation and arbitration The complaining party and tree owner shall each pay fifty
percent of mediation or arbitration fees unless they agree otherwise or allow the mediator or
arbitrator discretion for allocating costs
Cost of litigation To be determined by the court or through a settlement
Cost of restorative action To be determined by mutual agreement or through mediation
arbitration court judgment or settlement (Ord No 379 N S § 3 (part))
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Chaptei 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TPEES
15-14 Liabilities
(a) The issuance of mediation findings an arbitration report or a court decision shall not create
any liability of the town with regard to the restorative actions to be performed
(b) Failure of the town to enforce provisions of this chapter shall not give rise to any civil or
criminal liabilities on the part of the town (Ord No 379 N S § 3 (part))
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VTFW ANT) CI - TNT Tr; 0/1z1/?AnATITLE IV LAND IMPROVEMENT AND USE
Chaptei 15 VIEVV AND SUNLIGHT OBSTRUCTION FROM TREES
15-15 Limitations
It is not the intent of the town in adopting this chapter to affect obligations imposed by an existing
easement or a valid preexisting covenant or agreement (Ord No 379 N S § 3 (part))|1010|http Hot dlink corn/codes/tiburon/_DATA/TITLE04/Chapter_15 VIEW_AND_SUNLIG 9/14/2004TITLE IV LAND IMPROVEMENT AND USE
Chaptei 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
15 16 Trees on town owned property
Trees located on town owned property are exempt from the provisions of this chapter Requests
or complaints regarding trees located on town owned property should be made in writing to the
superintendent of public works for consideration in accordance with policies adopted by the town
(Ord No 379 N S § 3 (part))
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CHAPTER 22 76
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VIEW DISPUTE RESOLUTION PROCESS
Sections
22 76 010 Findings 22 76 100 Restor ation -saction Limitqtions
22 76 020 Intent qnd Pui pose 22 76 110 View oi Sunlight Claim Ev rlu -awn
22 76 030 Definitions CI item
22 76 040 View or Sunlight CIlim 22 76 120 Hiel al chy of Restoi ation Actions
Limitations 22 76 130 Responsibility tot Restoi ation
22 76 050 Pi w rite View oi Sunlight Cl urn Action and Subsequent
22 76 060 Initi ql Discussions nuntenqnce
22 76 070 Mediation 22 76 140 Lilbility
22 76 080 4.1 biti ation
22 76 090 Pi ivate Cause of Action View
Restm ation
22 76 010 Findings
The City Council finds and declaies as follows
A Both views and tiees and vegetation contribute to the aesthetic value quality of life ambiance and economic
value of propel ties within the City of Santa Barbaia Smulaily access to sunlight across property lines contributes to
the health and well being of community members enhances property values and provides an opportunity to utilize
sol ir energy Utilization of passive solar energy reduces air pollution visual blight and piomotes the geneial health
ind welfue of the residents of the City
B Views whether of the Pacific Ocean the Channel Islands the City the Santa Ynez Mountains the
sini oundmg hillsides and canyons or other natin al and man made landmarks produce a vai iety of significant and
tangible benefits foi both residents and visitors Views contiabute to the aesthetic visual envuorunent of the City of
Santa Bmbara by pi ovidmg scenic vistas and inspiring distinctive archnectuial design
C Tiees and vegetation pioduce a wide variety of significant psychological and tangible benefits for both
i esidents and visitors to the community Tiees and vegetation piovide privacy modify tempeiatures screen winds
leplenish oxygen to the atmosphere maintain soil moisture mitigate soil eiosion and piovide wildlife habitat Trees
ind vegetation connibutL, to the visual environment and aesthetics by blending buffering and i educing the scale and
ni iss of al clutecture Ti ees and vegetation within the City piovide botanical variety and a sense of history Ti ees and
vegetation ilso create shade and visual screens and provide a buffei between different land uses
D The benefits derived from views bees and vegetation and sunlight may come into conflict The planting of
bees and othei vegetation and their subsequent growth particulaily when such tiees aie not properly maintained can
pi oduce unintended harmful effects both on the property on which they are planted or on neighboring pope' ties
(Old 5220 2002)
22 76 020 Intent and Pui pose
The intent and purpose of this Chapter is to accomplish the following
A Right to Scenic View and Sunlight Access Establish the right of a ieal property owner to pi eseive scenic
views and access to sunlight flee florn unreasonable obstnictions caused by the growth of trees undei cucumstances
wheie such views and sunlight access existed prior to the growth of the um easonable obstiuction
B Dispute Resolution Process Establish that ieal property owneis ai e in need of a process to iesolve disputes
among themselves concerning view or sunlight access within the immediate vicinity of then property
C EN 111.1M1011 PI oiedui es Establish piocedures and evaluation criteria by which plivate leal pi opei ty owneis
may seek a mutually acceptable iesolution of such views or sunlight access disputes
D Pi otect Ti ees Discourage ill consideied damage to ties and vegetation and piomote mope' use of tees
and landscaping establishment and maintenance
E Not q Coven qnt 01 Se' vitude It is not the intent and purpose of this Chaptei toi the City to meate eithei a
covenant numing with the land or an equitable servitude
F Right Exclusrs e to this Chaptei Nothing helm shall be deemed to establish a gene' al light of a
homeowner to affect or i esti ict the lawful development oi use (including the use and maintenance of landscaping) of
a neighboung pope' ty undei cncumstances wheie such development m use is otherwise permitted appioved m
allowed uncle' the provisions of the Santa Baibara Municipal Code In addition nothing heiem shall be deemed m
Lunn ued to pi ovide a homeownei with any thing othei than the lights specified in this Chaptei foi the lestmation of
a \ iLw 01 accLss to sunlight and a right to utilize the dispute iesolution piocess tom addiessing um easonable tee ot
vegetation view obstructions as such claim pocess is established hem em (Old 5220 2002 )
q
Attachment No 5
435 1 iev 3/i1/022 7 76 030 Definitions
Fm the purpose of this Chaptei the following woids and phrases shall have the meanings set foith hcrem
A ALTER To take action that changes a tee m vegetation including but not limited to extensive pinning
the canopy mea topping cutting gridling interfering with the water supply applying chemicals or le grading around
the feeder root zone of the tree or vegetation
B ARBITRATION A voluntary legal pioceduie for settling disputes and leading to ri determination of rights
of parties usually consisting of a healing before an arbitrator where all ielevant evidence may be freely admitted as
set forth in California Code of Civil Procedure Section 1280 et seq
C ARBITRATOR A mutually agreed upon neutral thud party professional intermediary who conducts a
healing piocess and who hems testimony considers evidence and makes a decision foi the disputing parties The
aibitratoi may be chosen from a list available from the City of qualified and professionally trained arbitrators
including but not limited to membeis of the American Association of Aibiti atm s
D ARBORIST, CERTIFIED A person who has passed a series of tests by the International Society of
A.ibmicultrue (ISA) is governed by ISA's piofessional code of ethics and possesses the technical competence through
experience and related education and training to pi ovide for or supervise the management of trees and othei woody
plants
C AUTHORIZED AGENT A peison as defined heiein who has been designated ind approved in writing
by a teal property owner of iecord to act on his oi her behalf in matteis pertaining to toe processing or a view m
sunlight claim is outlined in this Chapter
F CANOPY The umbiella like structure cleated by the overhead leaves and branches of a tree which cieate a
shelteied mea below
G CITY MAINTAINED TREES Tiees which are specifically designated for maintenance by the City
Council for City maintenance under SBMC Section 15 20 050 in the Master Street Tree Plan adopted pursuant to
SBMC Section 15 20 030
H CITY PROPERTY Real property of which the City is the fee simple owner of recoid
I CLAIM VIEW OR SUNLIGHT Documentation as set forth in Section 22 76 050 that outlines the basis
of view or sunlight access diminishment and the specific restoration action that is being sought which shall seive as
the written basis for arbitration or a legal cause of action undei the piovisions of this Chapter
J COMPLAINANT Any property owner gioup of propeity owners (or an authorized agent thereof) who
111ege that tree(s)/vegetation located within the immediate vicinity of then property as set forth in Section 22 76 040
is causing umeasonable obstruction of the view or blocking the sunlight benefiting the ieal property of the
Complainant
K CROWN The iounded top of the tree
L CROWN REDUCTION/SHAPING A method or comprehensive trummng that reduces a tiee's height or
spiead Crown ieduction entails the reduction of the top sides or individual limbs of a tree by means of iemoval
leaders cm the longest portion of limbs to a lateral large enough to assume the terminal
M DESTROY To take action that endangers the health or vigor of a tree or vegetation including but not
!muted to cutting gn dlmg interfenng with the water supply applying chemicals or re grading around the base of the
trunk of a tree
N DIRECTOR The Directoi of the City Community Development Department
O HEADING BACK The overall reduction of the mass of a tiee by modification to its majoi limbs
P HISTORIC or SPECIMEN TREE Any tree or stand of trees that have been designated as either an
Historic Tree m a Specimen Tiee ptusuant to the authority of the Santa Barbara Municipal Code Chapters 15 20 -Ind
15 24
Q LACING or THINNING A compiehensive method of trimming that systematically and sensitively
iemoves excess foliage and improves the structure of a tree
R LAND SC APE CONSULTANT A landscape piofessional ietained to provide advice and information
iegardmg landscape plans view or sunlight claims and landscaping techniques and maintenance procedures
S MAINTENANCE PRUNING Pruning with the primary objective of maintaining or improving tree health
and structure includes 'crown reduction/shaping" or "lacing " but not ordinarily "topping" m "heading back"
T MEDIATOR A neutral objective thud party professional negotiator to help disputing parties leach a
mutually satisfactory solution regarding a view or sunlight claim The mediator may be chosen from a list available
from the City of qualified and piofessionally trained (arbaratois/mediators) including but not limited to members of
the American Association of Aibitrators
U OBSTRUCTION The blocking or diminishment of a view or sunlight access attributable to giowth
inrpi opei maintenance oi location of tiees or vegetation
3 PERSON Any individual individuals corporation paitneiship firm or other legal entity
W PRUNING The removal of plant material from a tree or from vegetation
X REAL PROPERTY Rights or inteiests of ownei ship of land and all appurtenances to the land including
buildings fixtures vegetation and improvements erected upon planted, or affixed to the land
Y RESTORATION ACTION Any specific steps taken affecting trees or vegetation that would iesult in the
ietoiation of a view or sunlight access across ieal property lines
-s-q
435 2 ley )/31102Z SEVERE PRUNING The cutting of bi-inches 01 hunk of a tiee in a manner which substantially reduces the
ovei all size of the tree oi destioys the existing symmetrical appealance or natui al shape of the tree and which iesults
in the iemoval of main lateial branches leaving the tiunk and branches of the ti ee in a stub appearance 'Topping"
and "heading back" as defined herein are consideied to be sevei e piuning
AA STAND THINNING The selective lemoval of a portion of trees h om a grove of trees
BB STREET The poi ton of a nght of way easement used foi public purposes such as ioadway impiovements
ciubs gutteis and sidewalks dedicated to the City and formally accepted by the City into the City public stieet
system for maintenance purposes
CC SUNLIGHT The availability oi access to light from the sun acioss pioperty lines
DD TOPPING Eliminating the upper portion of the tnual oi main leadei of a tree
EE TREE Any woody peiermial vegetation that genei ally Ins q single trunk and Leaches a height of at least
eight feet at maturity
FF TREE oi VEGETATION OWNER Any peison owning leal property in the City whei eon tiee(s) or
vegetation is located
GG VIEW A vista of featui es including but not limited to bodies of watei beaches coastline islands
skylines ndges hillside terrain canyons geologic features mountains and landmarks The term "view" does not
necessanly include an unobstructed panoiama of these features
HH VISTA PRUNING The selective thinning of fiamewoik limbs or specific areas of the clown of a hee to
allu w a view fium a specafic point (Ord 5220 2002)
22 76 040 View or Sunlight Claim Limitations
A PRIVATE VIEW DISPUTE RESOLUTION Subject to the other provisions of this Chapter the owner oi
owners of i eal property within the City (as the Complainant ) may initiate the private view dispute resolution
ocess provided for in this Chapter However a lequest for view or sunlight access dispute resolution may only be
made if such a claim has not been initiated against the same real pioperty by the Complainant withiespect to the
same tree or vegetation obstruction within a two year time period pnor to the initiation of the most iecent iequest
B CITY OWNED AND MAINTAINED TREES
Nothing herein shall provide any authority or process toi
the permitting of alterations to or the removal of City Maintained 'Dees or the alteration or removal of those tiees
egulated by SBMC Chapteis 15 20 and 15 24 (Ord 5220 2002)
22 76 050 Pi iv qte View oi Sunlight Claim
A NOTICE TO CITY OF COMPLAINT
A Complainant shall notify the City Community Development
Depaitment of any lequest for mediation or arbitration pursuant to the provisions of this Chapter and shall provide the
City with the claim documentation materials described in subsection B hereof Such notification and documentation
shall be for the purposes of City record-keeping regaiding the use of this Chapter only and shall not obligate the City
to assist or advise a property owner or participate in the dispute resolution process in any way
B CONTENTS OF CLAIM
A view or sunlight iestoration dispute iesolution piocess claim shall consist of
all of the following documentation and evidence
1 Evidence of Pi ioi View A written description of the nature and extent of the alleged obstruction
including pertinent and corroborating photographic evidence Evidence may include but is not limited
to documented and dated photographic prints or slides as well as written testimony °I declarations fiom
iesidents living in the area Such evidence should if possible show the extent to which the view oi
sunlight access has been diminished over time by the excessive giowth of the tiees or vegetation
Evidence Regal ding Urn easonable Ti ee Blockage
The location of all aces or vegetation alleged to
cause the obstruction the addiess of the pioperty upon which the ti ees or vegetation aie located and the
piesent ti ee/vegetation °wiles name and address
3 Desn ed Action The specific view or sunlight access restoiation actions being requested by the
Complainant in order to resolve the allegedly unreasonable view obstruction
4 Evidence of Attempted Resolution Evidence that an initial discussion between the two pioperty
owneis (as described in Section 22 76 060) has been made and has failed Evidence may include but is
not limited to copies of receipts for certified oi iegisteied mail conespondence
5 Evidence of Ownership Evidence confirming the ownership and the date of acquisition of the
Complainant s property
(Old .5 220 2002 )
22 76 060 Initial Discussions
A INITIAL CONTACT
A Complainant who believes that a tiee En some other vegetation which has grown
on anothei pelson's Leal ploperty has caused unreasonable obstuction of a view or sunlight access fiorn the
Complainant's pioperty shall first advise the bee or vegetation plopeity ownei of such view oi sunlight blockage
concerns This notification shall iequest personal discussions to enable the Complainant and tiee/ve g _etation pioperty
ownei to attempt to leach a mutually agieeable solution and shall be followed up with a wiitten confmintion of any
agieed-upon resolution and schedule foii the requned woik of view iestoration|10 9| 4i5 3 ley 3R1 /02B NOTIFICATION REQUIREMENTS The initial notification from the Complainant to the owner of the
tree/vegetation shall pi ovide a copy of the View Fieservation Ordinance (Santa Baibara Municipal Code Chapter
22 76) In the initial notification the Complainant shall invite the tree/vegetation ownei to view the alleged
obsti uction from the Complainant's property and the tree/vegetation ownei is uiged to invite the Complainant to view
the situation horn the ownel s piopeity Failuie of the tree/vegetation ownei to respond to the written iequest for
initial discussion within thirty (30) days from the date of posting shall be deemed a refusal by the owner to pal ticipate
in the initial discussion phase of the process
C FAILURE TO AGREE Aftei the initial discussion if the parties do not agree as to the existence and
nanine of the Complainant's obstruction or to the appropriate iestoiation action or if the initial discussion is iefused
the Complainant may proceed with the subsequent dispute iesolution piocess outlined heiem with iespect to
mediation aibitiation and court action (Ord . 220 2002)
" 76 070 Mediation
A MEDIATION REQUEST If initial discussion under Section 22 76 060 fads to achieve agieement between
the nee/vegetation ownei and Complainant the Complainant may send to the nee/vegetation owner a lequest that the
bee/vegetation owner accept participation in a mediation process in an effort to iesolve the view or sunlight blockage
claim Acceptance of mediation by the tree/vegetation owner shall be voluntary Howevei the iequest may inform
the nee/ egeta+ on o 1 e tl a+ fa h.irc to participate ni inediaLion way be brought to hc LOuiL auention in die evunt of
subsequent legal action by the Complainant Failme of the tree/vegetation owner to lespond to the notice iequesting
mediation within thirty (30) days from the date of posting shall be deemed formal refusal of the mediation process by
the tiee/vegetation owner
B SELECTION OF MEDIATOR If the tree/vegetation owner agrees to participate in a mediation piocess
the parties shall agree in writing to the selection of an individual mediator which may be chosen flom a list of
professional mediatois available from the City Community Development Department
C AUTHORITY OF MEDIATOR The mediator is encouraged to be guided by the provisions of this
Chapter including the claim evaluation criteria and the hierarchy of iestoration actions set forth in Sections 22 76 110
and 22 76 120 respectively in attempting to mediate a resolution of the view oi sunlight blockage claim The
mediator may iequest a consultation or information from a certified aibonst (chosen from a list of such arbonsts
made available by the Community Development Director) iegarding any questions involving landscape techniques oi
maintenance piocedures with the expense of such consultation payable as a mediation expense in accordance with
the piovisions of this Chapter
D ROLE OF THE MEDIATOR, COSTS, FAILURE TO RESPOND The role of the mediator shall be
advisory in nature and shall not be binding in establishing view or sunlight restoration action Any agieement
leached between the two parties as a result of the mediation piocess described herein shall be reduced to wilting by
the mediator and signed by the mediator and all of the parties The cost of mediation shall be paid by the
Complainant or shared in a maimer set by mutual agreement between the parties The failure of the ti ee/vegetation
ownei to iespond to implement (or allow the implementation of) a mediated resolution within thirty (30) days of the
submission of the mediated resolution to the owner (as established by the posting date) shall be deemed a iefusal by
the ti ee/vegetation owner to accept mediation (Old 5220 2002)
22 76 080 Ai biti -awn
A REQUEST FOR ARBITRATION If the initial discussion under Section 22 76 060 or a mediated resolution
pinsuant to Section 22 76 070 fails to achieve agreement between the tree/vegetation owner and the Complainant the
Complainant may advise the tree/vegetation owner in wilting that the Complainant is requesting participation in a
formal arbitration piocess Acceptance of aibitiation by the tee/vegetation owner shall be voluntary Howevei the
i equest may inform the tree/vegetation owner that failure to panicipate in the arbiti anon piocess may be biought to
the court's attention in the event of subsequent legal action by the Complainant pursuant to Section 22 76 090
The nee/vegetation owner shall have thirty (30) days fiom posting of the arbitiation notice to el-the' accept or decline
aibitration Failure to iespond within thirty (30) days shall be deemed a formal refusal of arbthation If accepted the
paities shall agree in writing to the selection of an individual arbitrator who may be chosen fi om a list of professional
aibitrators available florn the City within thirty (30) days of such acceptance If the parties do not agiee on a specific
aibitratoi within thirty days either party may petition a court of competent jurisdiction to appoint an arbthator
B AUTHORITY OF ARBITRATOR The arbitrator is encouraged to be guided by the pi ovisions of this
Chaptei including the claim evaluation criteria and the hieraichy of iestoiation actions set forth in Sections 22 76 110
and 22 76 120 iespectively in attempting to help resolve the view oi sunlight blockage claim and shall submit a
complete written decision to the Complainant and the tree/vegetation owner An arbthator is encouraged to iequest a
iepoit horn a certified arbonst with iespect to the view obsuuction dispute Any decision of the aibitiator shall not be
binding and shall only be enforceable pursuant to the provisions of California Code of Civil Procedure Section 1285
et seq
C ACCEPTANCE OF THE ARBITRATOR'S DECISION, COSTS OF ARBITRATION The tailine of
the tee/vegetation owner to implement the arbitrator s decision within thirty (30) days of the posting of the written
I on shall bi, deemLd a iefusal to accept aibitiation The costs of aibin anon shall be paid by the Complaunnt 01 6
- by mutual agreement between the pai ties (Old 220 2002 )
435 4 iev 3/31/0222 76 090 Pi ivate Cause of ,kction — View Restoi anon
A INITIAL COMPLAINT If a Complainant has pursued and has been unsuccessful in attempting to obtain
an iuceptable iestoiation andel Section 22 76 060 ("Initial Discussion") Section 22 76 070 (' Mediation") oi Section
22 76 080 (' bit anon' ) thu Complainant may inmate a civil action in Supenor Cow t foi the County of Santa
Baihua for resolution of ownei s view oi sunlight claim undei the piovisions of this Chaptei The Complainant is
encoumged to pi ovide the Court the iesults of the view or sunlight claim iesolution piocess particularly any poposed
mediator s or arbitrator s decision as well as any ieport oi study pi epared by a centhed mbonst prepmed
Gonnection with the view obstruction dispute At the discretion of the judge issuing a judgment pursuant to this
section the judgment may be recoided in the official records of Santa Barbm a County
B SUBSEQUENT COMPLAINTS A Complainant who has initiated a Complaint and obtained Restoration
Action du ough mediation or mbitiation undei this Chapter with respect to a particular Obstmcnon within two (2)
yeais of a subsequent Complaint shall not be iequired to seek mediation or arbitration on the subsequent Complaint
for the same obstruction pnor to initiating legal action puisuant to this Section (Ord 5220 2002)
22 76 100 Restoration Action Limitations
Except as otherwise authonzed by law no tree or vegetation on real property owned or controlled by anothe,
peison rnay be iemoved destroyed or otherwise altered unless the Complainant either enters into a wiitten agieement
with the nee/vegetation owner allowmg the Complainant to enter the property to do so or the Complainant obtains a
judicial determination specifying in detail the nature and timing of the restoiation action the Complainant s right to
Lutes the property and designating the parties responsible for peiforming such iestoiation action In all cases
restoration actions shall be structured and implemented in accordance with the hierarchy established by Section
22 76 120 (Ord 5220 2002)
22 76 110 View or Sunlight Claim Evaluation CI itei
In evaluating and iesolving a view oi sunlight claim the following unranked cntena shall be considered
A The vantage point(s) in the Complainant s home fiom which the view or sunlight is obtained or received
B The extent of the view or sunlight obstruction
C The quality of the view or sunlight access including the existence of landmmks or other unique view
features or the extent to which these views or sunlight access are blocked by tree(s) or vegetation,
D The extent to which the view oi sunlight access is diminished by factors other than tree(s) or vegetation
E The extent to which the tree(s) or vegetation have grown to obseme the enjoyment of view or sunlight access
horn the Complainant's pioperty compared with the view or sunlight access which was available at the time the
Complainant acquired his or her home
F The number of existing trees oi amount of vegetation in the area the number of healthy trees that a given
paicel of land will support and the current effects of the tree(s) and their removal on the neighboring vegetation
G The extent to which the tree(s) or vegetation provide
1 Screening or privacy
2 Eneigy conservation or climate contiol,
3 Soil stability as measmed by soil structuie degiee of slope and extent of the ti ee's root system when a
tree is proposed for removal,
4 Aesthetics
5 Community or neighborhood quality or significance
6 Shade
7 Histoncal context due to the age of the nee/vegetation
8 Raie and interesting botanical species
9 Habitat value for wildlife and
10 Blending buffenng oi ieduction in the scale and mass of adjacent ai chitecture
H The date the Complainant purchased his or her property and circumstances which existed at that time with
espect to the view
I The date the ti ee/yegetation ownei purchased his or her pioperty and cncumstances which existed at that
time with iespect to the view
J The distance between the Complainant s home and the nee or vegetation Obstruction foi which Restoiation
Action is sought
K Whether the tree oi vegetation Obstruction is located within a City designated High Fire Hazard zone and
constitutes the type of trees or vegetation not generally encouraged for new iesidential construction within such
zones
L The extent to which the City has an interest in the pieservation of an -iffected nee in its piesent form due to
its unique chmactei its histoncal mapoitance oi other specific factois as may be identified by a certified mbonst
(Old 22 0 2002)
435 5 icy /31/0222 76 120 Met ii chy of Restot qtion Actions
View or sunlight iestoration actions must be consistent with all othei piovisions of this Chaptei
and SBMC Title 22 generally Seveie paining should be avoided due to the damage such pi actice
causes to the tree's form and health Restoi anon actions may include but ai e not limited to the
following in order of preference
A Lacing or Thinning Lacing/thinning is the most pi efei able pruning technique that iemoves
excess foliage and can improve the structure of the tree
B Vista Pt unmg Vista pruning of branches may be utilized 1,vheie possible if it does not
adversely affect the tiee's growth pattern os health Topping should not be done to accomplish vista
uning
C CI own Reduction Crown ieduction is pi efeiable to topping or nee iemoval if it is
determined that the impact of crown reduction does not destioy the visual proportions of the tee
adversely affect the tree's glowth pattern or health or otherwise constitute a detriment to the tree(s)
question
D Stand Thinning The iemoval of a poition of the total number of trees fiom a grove of trees
ho tai' rep lacer c t p ia it lgs
E Topping Eliminating the upper portion at a nee's tiunk or main leader Topping is only to
be permitted for trees specifically planted and maintained as a hedge espalier bonsai oi in pollard
form and if restoration actions (A) tluough (D) of this section will not accomplish the determined
estoration and the subsequent growth charactenstics will not ci eate a future obstruction of greatei
proportions
F Heading Back Eliminating the outer extent of the major blanches throughout the tree
Heading back is only to be permitted for trees specifically planted and maintained as a hedge espalier
bonsai or in pollard form and if restoration actions (A) tluough (E) of this section will not accomplish
the detemuned restoration and the subsequent growth characteristics will not mate a future
obstruction of greater proportions
G Tree/Vegetation Removal Tree or vegetation iemoval which may be considered when the
above mentioned iestoration actions are judged to be ineffective and may be accompanied by
replacement plantings or appropriate plant materials to lest)]. e the maximum level of benefits lost due
to tree iemoval (Ord 5220 2002)
22 76 130 Responsibility for Restoi ation Action and Subsequent Maintenance
The costs of restoration action and subsequent maintenance shall be determined eithei by
agieement between the tree or vegetation owner and the Complainant or as required pursuant to any
final arbitration decision or court order (Ord 5220 2002)
22 76 140 Liability
A NON-LIABILITY OF CITY The City shall not be liable or responsible for any damages
injury costs or expenses which me the result of any recommendations or determinations made by City
Staff oi mediatoi or decisions made by other peisons (e g arbitator oi judge) concerning a view or
sunlight claim cm a Complainant's assertions pertaining to views or sunlight access gianted or
conferred herein
B CITY ENFORCEMENT Under no circumstances shall the City have any responsibility or
obligation to enforce oi seek any legal rediess civil or criminal foi any decision made concerning a
view or sunlight claim
C NO CRIMINAL RESPONSIBILITY Notwithstanding Chapter 1 28 of the Santa Baibm a
Municipal Code a failuie to comply with the provisions of this Chapter is not a criminal offense -Ind
the enfol cement of this Chaptei shall be only by the affected and interested private parties (Ord
5220 2002)
63
433 6 tev 3/31/02`SPction 12 45 010 Purpose Ind objectives Pi.ge 1 of 1
Chapter 12 4C; SOLAR ACCESS AND VIEWS
Berke k
Section 12 45 010 °urpose and objectives
A The purpose of this chapter is to|109| Set forth a procedure for the resolution of disputes between private property owners relating to
the resolution of sunlight or views lost due to tree growth
2 This view chapter does not impair obligations imposed by an existing easement or a valid pre-
existing enforceable covenant or agreement
3 Nothing in this chapter is meant to replace the peaceful sensible and just resolution of
differences between neighbors acting in good faith The provisions contained in this chapter are meant
to encourage that such resolution occurs prior to engaging in the legal remedies provided by it
B The objectives of this chapter are|109| To preserve and promote the aesthetic and practical benefits which trees provide for individuals
and the & sof re commun
2 To discourage ill considered harm to or destruction of trees
3 To encourage the use of solar energy for heat and light
4 To encourage food production in private gardens
5 To restore access to light and views from the surrounding locale
6 To encourage the maintenance of positive relationships within a neighborhood when there is
conflict between objectives 1 2 and 3 5 above
7 It is not an objective of this chapter to facilitate or encumber the transmission of radio and
television signals (Ord 6286 NS § 1 (part) 1995 Ord 6173 NS § 1 (part) 1993 Ord 5817 NS § 1
(part) 1987)
Attachment No 6
in ww ci hell elev r ii/1 nir/Rpil PIPV N/111111rIn g I rildPirltiP 11/15/01 /1 ui111
0/1 A hrinAutluil 1— 43 UZU 1.)C11111[10r1S rl.ge I Or I
Chapter 12 45 SOLAR ACCESS AND VIEWS
^
Section 12 45 020 Dennitions
A For the purposes of this chapter the meaning and construction of words and phrases
hereinafter set forth shall apply|109| Solar access means the availability of sunlight to a property
2 Views mean a distant vista or panoramic range of sight of Berkeley neighboring areas or the
San Francisco Bay Views include but are not limited to skylines bridges distant cities geologic
features hillside terrains and wooded canyons or ridges|109| Trees means any woody perennial plant usually with one or more major trunks attaining a
height of at least fifteen feet at maturity
4 Complaining party means any property owner (or legal occupant without objection of property
owner) who wishes to alter or remove a tree(s) on the property of another which creates an
obstruction to his or her access to sunlight or view whether such access is gained from an original
dwelling or any addition thereto used as a dwelling|109| Tree owner means any individual owning real property in Berkeley upon whose land is located
a tree or trees alleged by a complaining party to cause an obstruction
6 Obstruction means any substantial blocking or diminishment of a view from a structure
lawfully used as a dwelling or access to sunlight to the real property which is attributable to the growth
maintenance or location of tree(s)
7 Tree mediator or tree arbitrator means any trained and experienced mediator or
mediator/arbitrator acceptable to both complaining party and tree owner to mediate or arbitrate a tree
dispute|109| Restorative action means any specific requirement to resolve a tree dispute|10 9| Thinning means the selective removal of entire branches from a tree so as to improve visibility
through the tree and/or improve the tree s structural condition
10 Tree removal means the elimination of any tree from its present location
11 Trimming means the selective removal of portions of branches from a tree so as to modify
the tree(s) shape or profile or alter the tree s appearance
12 Topping means removal of the top portion of a tree s main leader stems resulting in an
overall reduction in the tree s height and size
13 Tree claim means the written basis for arbitration or court action under the provisions of this
article which includes all of the following
a The nature and extent of the alleged obstruction including pertinent and corroborating physical
evidence Evidence may include but is not limited to photographic prints negatives or slides Such
evidence must show absence of the obstruction at any documentable time during the tenure of the
current property owner (or legal occupant without objection of property owner) hereinafter referred to
as complaining party Evidence to show date of acquisition must be included
b The location of all trees alleged to cause the obstruction the address of the property upon
which the tree(s) are located and the present tree owners name and address This requirement may
be satisfied by the inclusion of the tree location property address and tree owner information
c Any mitigating actions proposed by the parties involved to resolve the tree claim
d The failure of personal communication between the complaining party and the tree owner to
resolve the alleged obstruction as set forth in Section 12 45 030 of this chapter The complaining part
must provide physical evidence that written attempts at conciliation have been made and failed
Evidence may include but is not limited to copies of and receipts for certified or registered mail
correspondence (Ord 6286 NS § 1 (part) 1995 Ord 6173 NS § 1 (part) 1993 Ord 5817 NS § 1
(part) 1987)
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tti , /www Cl beikeley ca us/bmc/Beikeley_Municipal_Code/Title_12/45/020 html 9/14/2004ILI11 L U...)1./ j. ll.A.A,ULLL
%.0
Chapter 12 415 SOLAR ACCESS AND VIEWS
Section 12 45 030 Procedures
A The procedures described in this section shall be followed in the resolution of tree disputes
between private parties
1 Initial reconciliation A complaining party who believes in good faith that the growth
maintenance or location of tree(s) on the private property of another (hereinafter referred to as tree
owner) diminishes the beneficial use of economic value of his or her property because such tree(s)
interfere with the access to sunlight or views which existed prior to such growth maintenance or
location of the tree(s) on the property during the time the complaining party has occupied the property
shall notify the tree owner in writing of such concerns The notification should if possible be
accomplished by personal discussions to enable the complaining party and tree owner to attempt to
reach a mutually agreeable solution
2 Mediation If the initial reconciliation a ftempt fails t he co m p la n hg pa +y
sh a
ilp opose
mediation as a means to settle the dispute on a relatively informal basis Acceptance of mediation by
the tree owner shall be voluntary If mediation is elected the parties shall mutually agree upon a tree
mediator
The mediation meeting may be informal and no written record is necessary unless desired by the
parties The mediation process may include the hearing of viewpoints of lay or expert witnesses and
shall include a site visit to the properties of the complaining party and the tree owner Parties should
be encouraged to give notice to immediate neighbors and solicit input The tree mediator shall
consider the objectives benefits and burdens set forth in this chapter in attempting to help both parties
reach a resolution of the dispute The tree mediator shall not have the power to issue binding orders
for restorative action but shall strive to enable the parties to resolve their dispute at this stage in order
to eliminate the need for binding arbitration or litigation
3 Tree claim preparation In the event that the initial reconciliation process fails and mediation
either is not elected or fails the complaining party must prepare a tree claim (as defined in 12 45 020)
and provide a copy to the tree owner in order to pursue either binding arbitration or litigation This
constitutes a filing of a tree claim
4 Binding arbitration In those cases where the initial reconciliation process fails and where
mediation has not resolved the dispute the complaining party must offer to submit the dispute to
binding arbitration and the tree owner may elect binding arbitration The identity of the tree arbitrator
shall be agreed upon by both the complaining party and the tree owner who shall indicate such
agreement in writing This agreement may provide for employment of experts representing the parties
or may be limited to an investigation of the tree claim conducted by the tree arbitrator The tree
arbitrator shall follow the provisions of this chapter to reach a fair resolution of the tree claim and shall
submit a complete written report to the complaining party and the tree owner This report shall include
the tree arbitrator s findings with respect to all standards listed in Section 12 45 040 (Standards) of this
chapter a pertinent list of all mandated restorative actions with any appropriate conditions concerning
such actions including a schedule by which mandates must be completed Such actions must be
completed with due regard for the health of the tree A copy of the arbitrator s report shall be filed with
the City Clerk
5 Litigation In those cases where initial reconciliation fails and binding arbitration is not elected
civil action may be pursued by the complaining party for resolution of the sunlight access or view tree
claim under the provisions of this chapter The litigant must state in the lawsuit that arbitration was
offered and not accepted and that a copy of the lawsuit was filed with the City Clerk A copy of any
order or settlement in the lawsuit shall also be filed with the City Clerk (Ord 6286 NS § 1 (part) 1995
Ord 6173 NS § 1 (part) 1993 Ord 5817 NS § 1 (part) 1987)
1 tio iivww Li betke l ev ca usibt le/Bell,e l ev Municipal Codeaitle 121-1-S/010 tni Q/1 Innn4Chapter 12 45 SOLAR ACCESS AND VIEWS
Section 12 .d5 040 Standards tor iesolution of disputes
A In resolving the tree dispute the tree mediator tree arbitrator or court shall consider the
benefits and burdens derived from the alleged obstruction within the framework of the objectives of
this chapter as set forth in Section 12 45 010 in determining what restorative actions if any are
appropriate The burden of proof shall be on the complaining party|109| Benefits
a Visual quality of the tree(s) including but not limited to species characteristics size growth
form and vigor
b Location with respect to overall appearance design and/or use of the tree owner s property
c Soil stability provided by the tree(s) considering soil structure degree of slope and extent of the
tree s root system
d Visual auditory and wind srreening provided by the free(s) to the tree owner 2 n d to neighbors
Existing privacy provided by the tree(s) to the tree owner s home shall be given particular weight
e Energy conservation and/or climate control provided by the tree(s)
f Wildlife habitat provided by the tree(s)
g The economic value of the tree(s) as measured by criteria developed by the International
Society of Arboriculture and the economic value of the property as a result of the tree(s)
h Other tree related factors including but not limited to
(i) The degree to which the species is native to the local region or area
(ii) Indigenous nature of the species to which the tree belongs
(iii) Specimen tree quality
(iv) Rare tree species and the frequency of new planting of a tree
2 Burdens
a The hazard posed by a tree or trees to persons or structures on the property of the complaining
party including but not limited to fire danger and the danger of falling limbs or trees
b The extent to which the trees diminish the amount of sunlight available to the garden or home
of the complaining party
c The extent to which the trees interfere with efficient operations of a complaining party s pre
existing solar energy system
d The existence of landmarks vistas or other unique features which cannot be seen because of
growth of trees since the acquisition of the property
e The extent to which the alleged obstruction interferes with sunlight or view The degree of
obstruction shall be determined by means of a measuring instrument or photography
f The extent to which solar access or the view is diminished by factors other than trees
g Deleterious effect of the trees upon the complaining party s vegetation through loss of heat and
light except that the dropping of leaves or maintenance factors shall not be a burden under this
chapter
3 Restorative actions The tree mediator shall recommend or the tree arbitrator or court shall
order restorative action or no action according to Section 12 45 040 (Standards) Restorative actions
may include written directions as to appropriate timing of trimming thinning topping or removal Such
restorative actions are to apply only to current parties to the dispute The tree arbitrator or court may
require compensation to the tree owner for value lost due to restorative actions
Possible restorative actions may include
Trimming
Thinning
Delayed trimming or thinning
Topping
Tree removal possibly with replacement plantings
a Restorative actions shall be limited to the trimming and/or thinning of branches where possible
and practical
Trimming or thinning may be on a delayed basis providing time for the top of the tree to grow above
the point where it obstructs sunlight or view
b When trimming and/or thinning of branches is not a feasible solution the impact on the health
of the tree shall be considered and replacement may be required Topping is not a generally accepted
arboncultural practice and therefore is not recommended by the City
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9/14/20043LA-1.1011 i 4 t./ LEU J1:11.1C1a1C1S f0 7 ICS011111011 01 Cl1SpLILeS
c In those cases where tree removal eliminates or significantly reduces the tree owner s benefits
replacement plantings shall at the tree owner s option be set forth in writing prior to the tree removal
The tree owner may elect tree removal with replacement plantings (as an alternative to ti imming
thinning and topping)
d All trimming thinning topping and tree removal required under this chapter shall be perrormed
by a person or firm selected by the tree owner with the concurrence of the complaining party except
that in the event that the complaining party is not obligated to bear any of the cost for such action his
or her concurrence is not required The use of a certified arbonst for such work is encouraged but not
required
e The extent of solar access or view available and documentable as present at any time during
the tenure of the present owner or legal occupant is the limit of restorative action which may be
required If the complaining party is seeking a view or sunlight from an addition the complaining party
has no right to a view or solar access greater than that which existed at the time the construction of
the addition was completed or August 6 1987 whichever date is later
f No restorative action may be required concerning any tree the base of which is more than three
hundred feet from the immediate vicinity of the dwelling of the complaining party s property If no
dwelling exists the distance shall be determined from the most likely dwelling site upon the property or
from the geogi aphical centei of the propel ty at the disci etion of the media-Rol al bivatur or court as
appropriate
g A tree which has been the subject of restorative action under the terms of this chapter is
exempted from other property owners claims for a period of five years from date of filing of a tree
claim
h Nothing in this section shall be construed to deny compensation to a tree owner to which a tree
owner would be entitled under any other provision of law (Ord 6286 NS § 1 (part) 1995 Ord 6173
NS § 1 (part) 1993 Ord 5817 NS § 1 (part) 1987)
Al r, =r1 •-• 1 11 " 1, 1 -1r D el ( "Ip-kt -111 Cnr1rIT ti = /1/(1,_1(` hi m 1
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Chapter 12 45 SOLAR ACCESS AND VIEWS
Section 12 45 050 Apportionment or costs
A Cost of mediation and arbitration|109| The complaining party shall pay all the costs if any of mediation
2 The complaining party and the tree owner shall each pay fifty percent of all the costs of the
arbitrator s professional fee if any
B Cost of litigation
1 The complaining party shall pay one hundred percent of both parties reasonable attorneys
fees in the event that his or her claim is finally denied or no action is ordered pursuant to Section
12 45 040 unless the tree owner has refused to participate in either the initial reconciliation or
mediation|109| In all other cases the complaining party and the tree owner shall each' pay his or her attorney s
fees Court costs s hn ll be nllocafed to film parties at the courts discretior
C Cost of restorative actions At any time during the procedure specified in this chapter the
parties may agree between themselves as to the allocation of the costs of restorative action If such an
agreement is not reached the following shall apply
1 As to trees planted prior to August 6 1987 the complaining party shall pay one hundred
percent of the costs of the initial restorative action The complaining party shall pay the cost of
subsequent restorative action as the result of the recurrence of the same obstruction
2 As to trees planted subsequent to August 6 1987 the tree owner and the complaining party
shall each be responsible for fifty percent of the costs of restorative action and subsequent recurrence
of the same obstruction
D Compensation for value of restorative actions In the event a tree arbitrator or court orders
restorative action and compensation to the tree owner therefor the tree arbitrator or court may use
any of the following methods to determine value lost fair market value replacement value or trunk
formula Trunk formula shall mean the method of determining value as set forth in latest edition of
the Guide for Plant Appraisal published by the Council of Tree and Landscape Appraisers (Ord
6286 NS § 1 (part) 1995 Ord 6173 NS § 1 (part) 1993 Ord 5817 NS § 1 (part) 1987)
oar) //www ci beikeley ca us/bme/Betkeley Mumemal Code/Title 12/45/050 htnal 9/14/2004Chapter 12 45 SOLAR ACCESS AND VIEWS
- - -
Secion 12 45 060 Liabliates
A The issuance of mediation findings an arbitration report or a court decision shall not create any
liability of the City with regard to the restorative actions to be performed
B The complaining party shall indemnify and hold harmless the tree owner with respect to any
damages or liability incurred by said owner arising out of the performance of any work at the behest of
the complaining party as follows|109| With respect to trees planted prior to August 6 1987 the complaining party shall indemnify the
tree owner as to one hundred percent of any such damages or liability
2 With respect to trees planted after August 6 1987 the complaining party shall indemnify the
tree owner as to fifty percent of any such damages or liability
C Failure to enforce on the part of the City will not give rise to any civil or criminal liabilities (Ord
6286 NS § 1 (pa rt) 1995 O rd 6173 NS § 1 (part) 1 993 Ord 58 17 N'S § 1 (pa +) 1987)
,
t v\vw ci beikelev ca us/mc/ei e e / A/11E11cl )9.1 Code/Title 12/A5/060 ht Til 9/14/200dChapter 12 45 SOLAR ACCESS AND VIEWS
3e&ion 12 45 070 Emorcement
A violation of this chapter is not a misdemeanor and the enforcement of this chapter shall be by
private parties involved The complaining party shall have the right to bring injunctive action to enforce
any restorative action ordered pursuant to this chapter (Ord 6286 NS § 1 (part) 1995 Ord 6173 NS
§ 1 (part) 1993 Ord 5817 NS § 1 (part) 1987)
7)
a fLp i/www ci bet keley ca us/bmc/Betkeley_Mumcipal_Code/Title_12/45/070 html 9/14/2004Sulion 12 45 ON Sevet
tge I 01
Chapter 12 15 SOLAR ACCESS AND VIEWS
Section 12 45 080 3everaoility
If any portion of this chapter is struck down by court action all other portions will remain in effect
(Ord 6286 NS § 1 (part) 1995 Ord 6173 NS § 1 (part) 1993 Ord 5817 § 1 (part) 1987)
2--
Af\IFIll 01 1, 1 . 1 1 1 1 0/ /TDP 1 PIP /1- r• In/T 1-1c. 1 ')//1 /(1°A 1 1-1 1 0/1 I /')(1/1 IAttachment No 7
ORDINANCE NO 200_6,
ORDINANCE NO 2006 AN ORDINANCE OF THE CITY OF CULVER CITY
CALIFORNIA AMENDING TITLE 9 GENERAL REGULATIONS
BY ADDING CHAPTER 9 12 TO THE CULVER CITY
MUNICIPAL CODE (CCMC) REGARDING VIEW
PRESERVATION (OBSTRUCTION FROM TREES)
The City Council of the City of Culver City California DOES HEREBY
ORDAIN as follows
SECTION 1 Title 9 of the Culver City Municipal Code is hereby amended
by adding Chapter 9 12 thereto to read as follows
CHAPTER 9 12 VIEW PRESERVATION (OBSTRUCTION FROM TREES)
Section 9 12 003 Findings
The City Council finds and declares as follows
A Views Trees and vegetation contribute to the aesthetic
value quality of life ambiance and economic value of properties within
the City of Culver City ( City')
B Views whether of the City the Los Angeles Basin the
surrounding hillsides and canyons or other natural and man made
landmarks produce a variety of significant and tangible benefits for both
residents and visitors
C Trees and vegetation (defined in Section 9 12 010 as
Tree ) produce a wide variety of significant psychological and tangible
benefits for both residents and visitors to the community Trees and
vegetation provide privacy modify temperatures screen winds replenish|10101010101010101010 10
10|11
12
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. Deleted 5
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,oxygen to the atmosphere maintain soil moisture mitigate soil erosion
and provide wildlife habitat Trees contribute to the visual environment
and aesthetics by blending buffering and reducing the scale and mass of
architecture Trees within the City provide botanical variety and a sense
of history Trees also create shade and visual screens and provide a
buffer between different land uses The benefits derived from Preexisting
Views may sometimes come into conflict with Trees The planting of
Trees and other vegetation and their subsequent growth particularly when
such Trees are not properly maintained can produce unintended harmful
effects both on the property on which they are planted and on neighboring
properties
D This ordinance shall be applicable to the affected hillside
areas in the City including Hetzler/Tompkins Blair Hills and Culver Crest
as shown in gray shading on the map attached hereto and incorporated
herein as Exhibit A and hereby made a part of this ordinance
Section 9 12 005 Purpose and Principles
A The purposes of this Chapter are to|109| Establish the right of a residential Beal Eroperty
Owner whose property is located within the affected hillside areas
as depicted in Exhibit A attached hereto and incorporated herein
to preserve Preexisting Views from unreasonable obstruction by
the growth of Trees|109| Establish thataealEropertyQwners are in need of a
process to resolve disputes among themselves concerning Views|10101010101010101010 10
10|11
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within the immediate vicinity of their property that are unreasonably
obstructed by the growth of Trees and|109| Establish a process and evaluation criteria by which
Real Eroperty Owners may seek mutually acceptable resolution of
such View disputes
B The rights and the restoration processes are based upon the
following general principles|109| The City recognizes the desire of many of its
residents and Real Property Owners for beautiful and plentiful
landscaping including Trees The City realizes this desire may
sometimes conflict with the preservation of Preexisting Views and
disputes related to Views are inevitable|109| The City also recognizes residents and Real property
Owners cherish their Views of and from the hills of the City The
City recognizes Views contribute greatly to the quality of life in the
City and promote the general welfare of the entire community|109| Real Property Owners and residents should maintain
Trees on their property in a healthy condition for both safety
reasons and for preservation of Preexisting Views Before planting
Trees Real Property.Owners and residents should consider the
potential for View blockage both currently and at Tree matunty
Persons have the right to seek civil remedies when threatened by
dangerous Tree growth|1010|7,C-{ Deleted r
Deleted
tforrnattelLont.12sti
I Deleted of
Deleted - •
Deleted when those Views existed
at the time they purchased their
property|109| The City shall establish a process by which a Beal
Eroperty Owner may seek to preserve and restore Preexisting
Views from unreasonable obstruction by the growth of Trees,
including,Views from the lot when it was first created or at the time
the Real Property Owner purchased or inherited Jhe property, The
City shall also establish a list of factors to be considered in
determining appropriate actions to restore such Views|109| When a Preexisting View obstruction dispute arises
the parties should act reasonably to resolve the dispute through
friendly communication thoughtful negotiation compromise and
other traditional means such as discussions with the appropriate
neighborhood or homeowner association Those disputes not
resolved through such means shall follow the procedure
established herein|109| It is the intent of the City for the provisions of this
Chapter to receive thoughtful and reasonable application It is not
the intent of the City to encourage clear cutting or substantial
denuding of any property of its Trees by overzealous application of
provisions of this Chapter and|109| It is the intent of the City to discourage ill considered
damage to Trees and promote proper use of Trees and
landscaping establishment and maintenance
-4|101010101010101010 10
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70Section 9 12 010 Definitions
For the purpose of this Chapter the meaning and construction of words
and phrases is as follows
Arbitrator A neutral person who will conduct a process similar to a trial
and who will hear testimony consider evidence and make a binding decision for the
disputing parties
Binding Arbitration A legal procedure as set forth in Section 1280 et seq
of the California Code of Civil Procedure
Complainant AnyaealEropertyQwner (including subsequent heirs,
successors in interest and subsequent bona fide purchasers or legal occupant with
written permission of the property owner) who alleges Trees located within the
immediate vicinity and on the property of another person are causing unreasonable
obstruction of his or her Preexisting Views
Crown Reduction/Shaping A method of comprehensive trimming that
reduces a Tree s height or spread Crown Reduction entails the reduction of the top
sides or individual limbs of a Tree by means of removal of leaders or the longest
portion of limbs to a lateral large enough to assume the terminal
Mediation A process in which a neutral third person or persons facilitate
communication between the disputants to assist them in reaching a mutually
acceptable agreement as further defined in Section 1775 et seq of the California Code
of Civil Procedure
Mediator A neutral objective third person that assists people in finding
mutually satisfactory solutions to their problem|10101010101010101010 10
10|11
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771|101010|Preexisting View A View which existedfrom the time the lot with the View
Deleted A View which existed at the
time
was first created or from the time a Complainant became owner or occupant of the
{ Formatted Font 12 pt
Deleted from the time it was first
created including Views which
existed
--
property or lot with the View
(Formatted Font 12 pt
Deleted a
4 Primary Living Area The portion or portions of a residence from which a
Deleted a Complainant became
owner or occupant of a property|1010|View is observed most often by the occupants relative to other portions of the|1010|residence The determination of Primary Living Area is to be made on a case by case|1010|basis|1010|Real Property Owner An owner of real property, including bona fide|10 10|purchasers, subsequent heirs and successors in interest
10
11
Restoration Action(s) Any specific requirement to resolve a Tree dispute
12
as discussed in this Chapter
13 Stump Growth New growth from the remaining portion of the Tree trunk
14
the main portion of which has been cut off
15
Thinning The selective and systematic removal of branches from a Tree
16
so as to improve visibility through the Tree and/or improve the Tree s structural
17
condition
18
Topping Elimination of the upper portion of a Tree s trunk or main leader
19
20
Tree(s) Any woody plant with the potential to obstruct views including
21
but not limited to trees shrubs hedges and bushes
22 Tree Claim The written basis for Mediation Binding Arbitration or court
23
action under the provisions of this Chapter
24
Tree Owner Any person owning real property in the City upon whose
25
land is located a Tree alleged by a Complainant to cause an unreasonable obstruction
26
to a Preexisting View
27
28
6Tree Removal The elimination of any Tree from its present location
Trimming The selective removal of portions of branches from a Tree so
as to modify the Tree s shape or profile or alter the Tree s appearance
View(s) A scene from the Primary Living Area of a residence The term
View(s) includes both upslope and down slope scenes but is generally medium or
long range in nature as opposed to short range View(s) include but are not limited to
skylines landmarks distant urban settings distinctive geologic features hillside
terrains ridges and bodies of water The term View(s) does not necessarily include
an unobstructed panorama of these features
Windowing A form of Thinning by which openings or windows are
created to restore Views
Section 9 12 015 Rights Established
A A Real Eroperty Owner shall have the light to preserve and
seek restoration of a Preexisting View when such View is from the
Primary Living Area and has subsequently been unreasonably obstructed
by the growth of one or more Trees provided that such action has not
been initiated against the same real property by the Complainant with
respect to the same Tree within a two year time period prior to the
initiation of the most recent action
B In order to establish such rights pursuant to this Chapter the
person must follow the process established in this Chapter In addition to
the above rights private parties have the right to seek remedial action for
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C Nothing contained in this Chapter is intended to provide any
authority or process for the permitting of alterations to or the removal of
City owned and maintained Trees
Section 9 12 025 Criteria for Determining Unreasonable Obstruction
The following criteria are to be considered (but are not exclusive) in
determining whether unreasonable obstruction has occurred
A The extent of obstruction of a Preexisting View from the
Primary Living Area of the Complainant,
B The quality of the Preexisting Views being obstructed
including obstruction of landmarks vistas or other unique View features
C The extent to which the Trees have grown to obscure the
enjoyment of the View from the Complainant s property compared with the
Preexisting View which was available at this property
D The extent to which the Complainants Preexisting View has
been diminished over time by factors other than Tree growth
E The deleterious effect of the Trees upon the Complainant s
vegetation through loss of heat and light except that the dropping of
leaves or maintenance factors shall not be considered a criterion under
this Chapter
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28When it has been determined per Section 9 12 025 of this Chapter that an
unreasonable obstruction has occurred the following unweighted factors shall be
considered in determining the appropriate Restoration Action
A The hazard posed by a Tree to any person or structure on
the property of the Complainant Party including but not limited to fire
danger and the danger of falling limbs or Trees
B Variety of the Tree its projected rate of growth and
maintenance requirements
C Aesthetic quality of the Tree including but not limited to
species characteristics size growth form and vigor
D Location with respect to overall appearance design or use
of the Tree Owners property (i e blending buffering or reduction in the
scale and mass of adjacent architecture)
E Soil stability provided by the Tree considering soil structure
degree of slope and extent of the Tree s root system
F Privacy (visual and auditory) and wind screening provided by
the Tree to the Tree Owner and to neighbors
G Energy conservation and or climate control provided by the
Tree
H Wildlife habitat provided by the Tree
I The extent to which the Tree provides historical context due
to the age of the Tree and rare and interesting botanical species
Section 9 12 035 Hierarchy of Restoration Actions|10 101010101010101010 10
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1A If an unreasonable obstruction of a Preexisting View exists
a Mediator shall recommend or an Arbitrator or Court shall order
Restorative Action based only on this Chapter Restorative Action may
include written directions as to appropriate timing for such Restorative
Action to be taken Restoration action shall be structured and
implemented in accordance with the hierarchy established herein
Restoration Action includes but is not limited to the following|109| Trimming|109| Thinning or Windowing|109| Crown Reduction|109| Topping|109| Removal with replacement plantings and|109| Removal without replacement plantings
B In each case Restorative Action shall only be required to the
extent a Preexisting View is proven by the Complainant based on
documentable evidence
C Restorative Action may include written conditions (including
ongoing maintenance) and directions as to appropriate timing of such
actions as well as recordation of an agreement containing covenants or
other documentation to memorialize the conditions and make them
applicable Where Tree Removal is required replacement by appropriate
species should be considered The Tree Owner may elect Tree Removal
with replacement plantings as an alternative to Trimming Thinning and
Topping
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28A Stump Growth Stump Growth generally results in the
hazard of weak limbs and its protection is not desirable When
considering Restorative Action for Stump Growth aggressive action is
preferred Restorative Action which will result in future Stump Growth
should be avoided
B Trimming Trimming is the most minor form of physical
Restorative Action This option is recommended when minor
unreasonable obstruction has occurred provided that ongoing
maintenance is guaranteed
C Thinning or Windowing When simple Trimming will not
resolve the unreasonable obstruction Thinning or Windowing may be
necessary This action should be supervised by a certified arbonst
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D In cases where Trimming Windowing or other Restorative
Action may affect the health of a Tree that is to be preserved such
actions should be carried out in accordance with standards established by
the International Society of Arboriculture for use in the State of California
E A Tree which has been the subject to Restorative Action
under the terms of this Chapter is exempt from being part of another Tree
claim for a period of two years after the date of the satisfactory completion
of the Restorative Action
Section 9 12 040 City Guidelines Concerning Restoration Action
The City provides the following general guidelines concerning Restorative
Actions
c7D Crown Reduction Crown Reduction may be necessary
when Thinning and Windowing will not resolve the unreasonable
obstruction However as with Thinning and Windowing Crown Reduction
should be supervised by a certified arbonst
E Topping Topping as a Restorative Action should be used
with caution Topping can have deleterious effects on a Trees health
appearance and cost of maintenance Topping frequently results in
Stump Growth Tree Removal with replacement plantings may be a
preferable alternative
F Tree Removal Tree Removal may be required where it is
essential to preserve Preexisting Views While normally considered a
drastic measure Tree Removal can be the preferred solution in certain
circumstances
G Maintenance Ongoing Tree maintenance requirements are
strongly recommended as part of Restorative Action in order to achieve
lasting preservation of Preexisting Views
H Permanence Conditions of Restorative Action should be
memorialized in a recordable document, for all affected properties, to help
notify subsequent heirs and successors in interest of their applicability
SECTION 9 12 045 Process For Resolution Of Obstruction Disputes
The following process shall be used in the resolution of Preexisting View
disputes between parties
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mA Initial Discussions|109| Complainant who believes Tree growth on the
property of another has caused unreasonable obstruction of a
Preexisting View from the Primary Living Area shall first notify the
Tree Owner in writing of such concerns|109| The notification should if possible be accompanied
by personal discussions to enable the Complainant and Tree
Owner to attempt to reach a mutually agreeable solution and shall
be followed up with a written confirmation of any agreed upon
resolution and schedule for the required work of View restoration
If personal discussions fail then neighborhood associations may
be willing to assist with the resolution of the obstruction dispute|109| The initial notification from the Complainant to the
Tree Owner shall provide a copy of this ordinance., In the initial
notification the Complainant shall invite the Tree Owner to view the
alleged obstruction from the Complainant property and the Tree
Owner is urged to invite the Complainant to view the situation from
the Tree Owners property Failure of the Tree Owner to respond
to the written request for Initial Discussion within thirty (30) days
after the date of the posting shall be deemed a refusal by the Tree
Owner to participate in the Initial Discussion phase of the process
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and|109| After the Initial Discussion if the parties do not agree
as to the existence and nature of the Complainant s obstruction or
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lalto the appropriate Restoration Action or if the Initial Discussion is
refused the Complainant may proceed with the subsequent
dispute resolution process outlined herein with respect to Tree
Claim preparation Mediation Binding Arbitration and litigation
B Tree Claim Preparation
In the event the Initial Discussion process fails to resolve the
dispute the Complainant must prepare a Tree Claim and provide a copy
to the Tree Owner in order to pursue Mediation Binding Arbitration or
litigation under the authority established by this Chapter
A Tree Claim shall consist of all of the following|109| Evidence of Preexisting View A written description of
the nature and extent of the alleged obstruction including pertinent
and documentable physical evidence Evidence may include but
is not limited to photographic prints negatives or slides as well as
written testimony or declarations from residents living in the area
Such evidence must prove the absence of the obstruction of the
Preexisting View , Evidence confirming the ownership and the
date of property acquisition of the Complainant s property must be
included|109| Evidence Regarding Unreasonable Tree Blockage
The location of all Trees alleged to cause the obstruction the
address of the property upon which the Trees are located and the
present Tree Owners name and address
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during the tenure of Complainant
63 Evidence of Attempted Resolution Evidence that an
Initial Discussion as described in Section 9 12 045 to resolve the
dispute has been made and has failed The Complainant must
provide physical evidence that written attempts at reconciliation
have been made and have failed Evidence may include but is not
limited to copies of and receipts for certified or registered mail
correspondence and
4 Desired Action Specific View Restoration Actions
proposed by the Complainant to resolve the unreasonable View
obstruction
C Mediation|109| If the Initial Discussion attempt fails then the
Complainant shall send to the Tree Owner a written request to
participate in a Mediation process as a timely means to settle the
obstruction dispute|109| Acceptance of Mediation by the Tree Owner shall be
voluntary but the Tree Owner shall have no more than thirty (30)
days after service of notice to either accept or reject the offer of
Mediation Failure to respond shall be deemed formal refusal of
the Mediation process If Mediation is accepted then the parties
shall mutually agree in writing to the selection of a Mediator|109| It is recommended the services of a professionally
trained Mediator be employed
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Mediation process may include the hearing of viewpoints of lay or
expert witnesses and shall include a site visit to the properties of
the Complainant and the Tree Owner Parties are encouraged to
contact immediate neighbors and solicit input and|109| The Mediator shall consider the purposes and policies
set forth in this Chapter in attempting to help resolve the dispute
The Mediator shall not have the power to issue binding orders for
Restorative Action but shall strive to enable the parties to resolve
their dispute by written agreement in order to eliminate the need for
Binding Arbitration or litigation
D Binding Arbitration|109| In those cases where the Initial Discussion process
fails and where Mediation is declined by the Tree Owner or has
failed to resolve the Complainant s complaint the Complainant
must offer in writing to submit the dispute to Binding Arbitration|109| Acceptance of Binding Arbitration by the Tree Owner
shall be voluntary The Tree Owner shall have thirty (30) days
after service of notice to accept or reject Binding Arbitration
Failure to respond shall be deemed a formal refusal of Binding
Arbitration If accepted the parties shall agree on a specific
Arbitrator and shall indicate such agreement in writing and|109| The Arbitrator shall use the provisions of this Chapter
to reach a fair resolution of the Tree Claim and shall submit a
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Vcomplete written report to the Complainant and the Tree Owner
This report shall include the Arbitrators findings with respect to
Sections 9 12 025 and 9 12 030 of this Chapter a pertinent list of
all mandated Restoration Actions with any appropriate conditions
concerning such actions and a schedule by which the actions must
be completed A copy of the Arbitrators report shall be filed with
the City Clerk upon completion Any decision of the Arbitrator shall
be enforceable pursuant to the provisions of California Code of
Civil Procedure Section 1280 et seq
Litigation|109| In those cases where Binding Arbitration is declined
by the Tree Owner then civil action may be pursued by the
Complainant for resolution of the View obstruction dispute under
the rights and provisions of this Chapter and|109| The litigant must state in the lawsuit Binding
Arbitration was offered and not accepted and a copy of the lawsuit
was filed with the City Clerk A copy of any order or settlement in
the lawsuit shall also be filed with the City Clerk
Section 9 12 050 Apportionment of Costs
A Cost of Mediation and Arbitration Unless the parties agree
otherwise the costs and fees for Mediation and Arbitration shall be
subject to provisions of section 1284 2 of the California Code of Civil
Procedure which states among other things that parties to an arbitration
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should pay their own costs and a pro rat&share of the Arbitrator s fees
and costs
B Cost of Litigation To be determined by the Court or through
a settlement
C Cost of Restorative Action To be determined by mutual
agreement or through Mediation Binding Arbitration court judgment or
settlement
D Nothing in this chapter shall be construed to deny
compensation to a Tree Owner to which a Tree Owner would be entitled
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under any other provision of law
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Section 9 12 055 Liabilities
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The issuance of Mediation findings a Binding Arbitration report or a court
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decision shall not create any liability of the City with regard to the Restorative Actions to
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be performed Failure of the City to enforce provisions of this Chapter shall not give
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Section 9 12 060 Enforcement
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A A violation of this Chapter is not a misdemeanor or
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infraction The enforcement of this Chapter shall be by the private parties
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B Under no circumstances shall the City have any
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Section 9 12 065 Limitations
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oA It is not the intent of the City in adopting this Chapter to
affect obligations imposed by an existing easement already existing City
Council and/or Planning Commission entitlements or a valid preexisting
covenant or agreement
B It is the intention of the City that all other portions of this
Chapter shall remain in effect in the event a portion of it is invalidated by
court action
Section 9 12 070 Trees Owned and Maintained By the City
Trees owned or maintained by the City are exempt from the provisions of
this Chapter Requests or complaints regarding Trees owned or maintained by the City
should be made in writing to the Public Works Director for consideration in accordance
with policies adopted by the City
SECTION 2 The Mayor of the City shall sign and City Clerk shall
attest to the passage of this ordinance The effective Date of this ordinance shall be
(30) days from the date of its adoption and prior to the expiration of fifteen (15) days
from the adoption hereof the City Clerk pursuant to Government Code Section
36933(c)(1) shall cause a summary of this ordinance to be published in The Culver City
News along with the record of the vote for approval and adoption and shall post at City
Hall a certified copy of the full text of this Ordinance along with the record of the vote
thereon Additionally the City Clerk shall post a summary of this Ordinance in at least
three public places within the City pursuant to Section 517 of the City Charter
APPROVED and ADOPTED this
day of 2005
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q /ALBERT VERA Mayor|1010|City of Culver City California|101010101010|ATTEST APPROVED AS TO FORM|1010|CHRISTOPHER ARMENTA CAROL A SCHWAB
8 City Clerk City Attorney
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