HomeMy WebLinkAbout427 ORDINANCE NO. 427
AN ORDINANCE OF THE TOWN OF LOS ALTOS HILLS
ADDING CHAPTER 9 TO TITLE 5 OF LOS ALTOS HILLS
MUNICIPAL CODE REGULATING VIEW AND SUNLIGHT
OBSTRUCTIONS
Whereas,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 the property or up to 15 years prior to adoption of this ordinance
whichever is'less, 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.
NOW, THEREFORE,the City Council of the Town of Los Altos Hills does ORDAIN as
follows:
I. Chapter 9 is hereby added to Title 5 of the Los Altos Hills Municipal Code to read as
follows:
Chapter 9: VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
Section 5-9.01. Purpose and Principles.
The rights and the restorative process are based upon the following general principles:
1. The Town recognizes that'residents cherish their outward views from the hills,
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 Los Altos Hills, and
promote the general welfare of the entire community.
2. The Town also recognizes the desire of many of its residents, property owners,
and institutions 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
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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 the
property or up to 15 years prior to adoption of this ordinance whichever is less,
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.
Section 5-9.02. 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 Code of Civil Procedure.
Initiating Partes 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.
Landscape Screening_ A method by which trees and vegetation are planted
in order to separate and partially obstruct the view of adjacent and nearby
structures and properties from one another. Landscape screening shall
generally not exceed the height of the ridgeline of the primary structure.
Mediator: A neutral, objective third person who assists people in finding
mutually satisfactory solutions to their problem.
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Person: Any individual, corporation, partnership, firm, or other legal
entity, excluding the Town of Los Altos Hills.
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.
Protected Tree: Any of the following:
HERITAGE TREE, shall mean any tree that, due to age, size,
location, visibility, historic nature, or other unique attribute, has
been deemed by the Town to be a heritage tree and accordingly
deserves special consideration for preservation and protection.
HERITAGE OAK, shall mean any tree of the genus quercus,
including, but not limited to, Valley Oak (quercus lobata),
California Live Oak (quercus agrifolia), Black Oak (quercus
kelloggii) and Blue Oak (quercus douglasii) that has a trunk or
multiple trunk thirty-six. (36) inches in circumference
(approximately twelve (12) inches in diameter) at a point four (4')
feet above the root crown.
Removal: The elimination of any tree from its present location.
Restorative Action: Any specific requirement to resolve a tree dispute.
Stump Growth: New growth from the remaining portion of the tree trunk,
the main portion of which has been cut off.
Sunlight: The availability of direct or indirect sunlight to the primary
livifng area of a residence.
Thinning: 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_Elimination of the upper portion of a tree's trunk or main leader.
Tree: 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: The written basis for arbitration or court action under the
provisions of this Chapter.
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Tree Owner: Any person owning real property in Los Altos Hills upon
whose land is located a tree or trees alleged by an Initiating Party to cause
an unreasonable obstruction.
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: A scene from the primary living area of a residence. The term "view"
includes both upslope and downslope scenes,but is 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: San Francisco Bay, neighboring Silicon
Valley Communities, Lands of Stanford, Lands of MidPeninsula Open
Space District, The City's of San Francisco and San Jose, East Bay Hills,
Bay Bridge, San Mateo Bridge, Dumbarton Bridge.
Windowing: A form of thinning by which openings or "windows" are
created to restore views and or sunlight.
Section 5-9.03. Rights Established.
Persons shall have the right to preserve views or sunlight, which existed at any
time since they purchased their property or not more than 15 years prior to
adoption of this ordinance whichever option results in less time, when such views
or sunlight are from the primary. living area and have subsequently been
unreasonably obstructed by the growth of trees.
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.
All persons are advised that the alteration, removal, and planting of certain trees
requires a permit under Title 12, Article 3, Sections 12-2.202, 12-2.302, 12-2.403
of the Town of Los Altos Hills Municipal Code (Parks and Recreation). The
applicability of Title 12 should be determined prior to any action on trees.
Section 5-0.04. 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 of any other parcel of property within the Town of Los Altos Hills.
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(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 shall also constitute a public nuisance.
Section 5-9.05. 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 pre-existing views from, or sunlight reaching, the
primary living area of the Initiating 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 an Initiating
Parry's pre-existing solar energy systems.
(d) The extent to which the Initiating Party's view and/or sunlight has been
diminished over time by factors other than tree growth.
Section 5-9.06. Criteria for Determining Appropriate 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
Initiating 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), wind and landscape 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).
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(h) Wildlife habitat provided by the tree(s).
(i)Whether trees are "Protected Trees", as defined herein.
Section 5-9.07. Types of Restorative Action.
Restorative actions include but are not limited to the following:
--trimming
--thinning or windowing
--topping
--removal with replacement plantings
--removal without replacement plantings
In all cases, the documentable extent of view or sunlight existing at any time since they
purchased the property or up to 15 years prior to adoption of this.ordinance.whichever is less, is
the maximum limit of Restorative Action which may be required.
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.
Section 5-9.08. Town Guidelines Concerning Restorative Action.
The Town of Los Altos Hills provides the following general guidelines concerning restorative
actions:
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, Monterey Pine, Monterey Cypress
trees,
When considering restorative action for "undesirable" trees, aggressive
action is preferred.
Redwood Trees. Redwood trees are desirable for their scenic qualities and
fire resistance. However, Redwood trees must be sited with care in order
to avoid potential view obstructions.
Protected Trees. The Town of Los Altos Hills has designated certain trees
to be "protected trees", defined in Section 10-2.8.1.02. Any alteration or
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removal of protected trees shall require a permit from the Town pursuant
to the Town Municipal Code.
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.
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.
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 arborist.
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.
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.
Disturbance to Nesting Birds Topping and Tree removal should take place
between the end of August and the beginning of January to avoid
disturbance of nesting birds protected under the Federal Migratory Bird
Treaty Act (MBTA) and California Department of Fish and Game Code
Section 3500 et seq unless a nesting bird survey is first conducted and
there is a determination that there are no active nests within the tree.
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.
Section 5-9.09. Process for Resolution of Obstruction Disputes.
The following process shall be used in the resolution of view and sunlight obstruction disputes
between parties:
1. Initial Reconciliation: An Initiating Party who believes that tree growth on the property
of another has caused unreasonable obstruction of views or sunlight from the primary
living area shall notify the Tree Owner in writing of such concerns.
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The notification should, if possible, be accompanied by personal discussions to enable
the Initiating Party and Tree Owner to attempt to reach a mutually agreeable solution. If
personal discussions fail, neighborhood associations may be willing to assist with the
resolution of the obstruction dispute. For trees located on Town-owned property, see
Section 10-2.8.1.16.
2. Mediation: If the initial reconciliation attempt fails, the Initiating Party shall propose
mediation as a timely means to settle the obstruction dispute.
Acceptance of mediation by the-Tree Owner shall be voluntary, but the Tree Owner shall
have no more than 30 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 10 days. .
It is recommended that the services,of a professionally.trained mediator be employed.
The Los Altos Mediation Program(L.A.M.P) is an example of such a service.
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 Initiating Party and the Tree Owner. Parties are encouraged to
contact immediate neighbors and solicit input.
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.
Section 5-9.10. Tree Claim Preparation.
In the event that the Initial Reconciliation process-fails, and mediation either is declined by the
Tree Owner or fails, the Initiating 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.
A Tree Claim shall consist of all of the following:
(a) 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. Such evidence must show absence of the
obstruction at any time since they purchased their property or not more than 15 years
prior to adoption of this ordinance whichever option results in less time.
(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 owner's name and address.
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(c) Evidence of the failure of initial reconciliation, as described in Section 10-2.8.1.09, to
resolve the dispute. The Initiating Parry 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.
(d) Evidence that mediation, as described in Section 10-2.8.1.09, has been attempted and
has failed, or has been declined.by the Tree Owner.
(e) Specific restorative actions proposed by the Initiating Parry to resolve the
unreasonable obstruction.
Section 5-9.11. Binding Arbitration.
In those cases where the initial reconciliation process fails and where mediation is declined by
the Tree Owner or has failed, the Initiating Party must offer in writing to submit the dispute to
binding arbitration, and the Tree Owner may elect binding arbitration.
The Tree Owner shall have 30 days from.service of notice to accept or reject binding arbitration.
If accepted, the parties shall agree on a specific Arbitrator within 21 days, and shall indicate such
agreement in writing.
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 Initiating Party and the Tree Owner. This report
shall include the Arbitrator's.findings with respect to Sections 5-9.05 and Section 5-9.06 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 Arbitrator's 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.
Section 5-9.12. Litigation.
In those cases where binding arbitration is declined by the Tree Owner, then civil action may be
pursued by the Initiating Party for resolution of the view or sunlight obstruction dispute under
the rights and 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 Town Attorney. A copy of any order or settlement in the
lawsuit shall also be filed with the Town Attorney.
Section 5-9.13. Apportionment of Costs.
Cost of Mediation and Arbitration: The Initiating Party and Tree Owner shall each pay 50% of
Mediation or Arbitration fees, unless they agree otherwise or allow the Mediator or Arbitrator
discretion for allocating costs.
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Cost of Liti ag tion: 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.
Section 5-9.14. Liabilities.
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.
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.
Section 5-9.15. Limitations.
It is not the intent of the Town in adopting this Chapter to affect obligations imposed by an
existing easement or a valid pre-existing covenant or agreement.
Section 5-9.16. Trees on Town-owned Property or within Conservation Easements.
Trees located on Town-owned property or naturally occurring native species within conservation
easements 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.
II. Severability. If any part of this ordinance is held to be invalid or inapplicable to any
situation by a court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this ordinance or the applicability of this ordinance to other situations.
III. Effective Date; Publication. This ordinance shall take effect thirty(30) after adoption.
Within fifteen days after the passage of this ordinance the City Clerk shall cause this ordinance
or a summary thereof to be published once, with the names of those City Councilmembers voting
for or against it in a newspaper of general circulation in the Town of Los Altos Hills, as required
by law.
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INTRODUCED: May 15, 2003
PASSED: ,June 5 , 2003
AYES: Mayor Fenwick, Mayor Pro Tem Cheng, Councilmember O';.Malley
Councilmember Kerr and Councilmember Warshawsky
NOES: None
ABSTENTIONS: None
ABSENT: None
BY:
Mayor
City Clerk
AP VED
City A omey
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