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Tree Ordinance Guidelines
View
or solar access ordinance provisions (Provisions 33-37)
The provisions on this page can be used as a guide for drafting an
ordinance to facilitate the resolution
of conflicts between citizens that pertain to trees on private property.
The provisions covering this goal may be included in the tree ordinance
or enacted as a separate ordinance. If tree dispute resolution provisions
are included within the tree ordinance, it will be necessary to include
appropriate references in provisions 3,
4,
10,
11,
and 15.
If a separate tree dispute ordinance is developed, these provisions will
need to be included in the ordinance.
| Number |
Provision |
Goals |
| 16 |
Establish
a tree board or commission |
6,8 |
| 17 |
Specify
cooperation between departments and agencies |
6,7 |
| 18 |
Develop
a comprehensive management plan |
1,2,3,4,5,7 |
| 19 |
Resolution
of conflicts between trees and structures |
1,2,4 |
| 20 |
Exemption
from Solar Shade Control Act (California) |
1 |
| 21 |
Responsibilities
of property owners |
5 |
| 22 |
Help
for citizens performing tree maintenance |
2,8 |
| 23 |
Topping prohibited |
2 |
| 24 |
Permit
required for planting trees in the public right-of-way |
5 |
| 25 |
Planting requirements |
1,2,3,4,5 |
| 26 |
Situations
which are declared to be public nuisances |
2 |
| 27 |
Abatement
of hazards and public nuisances |
2 |
| 28 |
Licensing
of private tree care firms |
2 |
| 29 |
Harming public
trees forbidden |
2 |
| 30 |
Permit
required for activities that may damage city owned trees |
1,2,4,5 |
| 31 |
Permit
required for activities that may damage protected private trees |
1,2,4 |
| 32 |
Conservation
of forest and woodland resources during development |
1,3,4 |
| 33 |
Procedures
to be followed in resolving tree disputes |
9 |
| 34 |
Standards
for resolution of tree disputes |
9 |
| 35 |
Apportionment
of tree dispute resolution costs |
9 |
| 36 |
Recording
for notification of future owners |
9 |
| 37 |
Enforcement
of tree dispute resolutions |
9 |
33.
Procedures to be followed in resolving tree disputes
Purpose: To set forth procedures to be followed in resolving
disputes over alleged obstruction of views or sunlight by trees.
Key elements:
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-Procedure for notifying the tree owner of the complaint
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-Procedure for resolving the claim
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-Position(s) responsible for hearing claims
Notes: When the tree owner is a private individual, the procedure
for resolving the complaint usually involves a series of steps. The procedure
is initiated by notifying the tree owner of the complaint in writing. The
complaining party and the tree owner may then attempt to resolve the conflict
informally in face-to-face meetings or through the use of a mediator. If
this is unsuccessful, a formal procedure for mediating the dispute is initiated.
Some jurisdictions require a public hearing before a city committee
in the event that private reconciliation or mediation fails to resolve
the dispute. In this case, the findings of the committee may be subject
to appeal. In other jurisdictions, binding arbitration is an option. No
appeals are allowed if binding arbitration is elected.
Responsibility for hearing disputes should be designated. If a committee,
such as a community tree board already exists, this could be one of its
responsibilities. If a new committee needs to be constituted to settle
disputes, its makeup should be specified in the provision.
| A claimant who believes in good faith that
the growth, maintenance or location of trees situated on the property of
another diminishes the beneficial use, or economic value of his or her
property because the tree interferes with the access to sunlight or views
naturally accruing to the property, shall notify the tree owner in writing
of these concerns. 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.
[San Francisco, CA: Public Works
Code Section 823(a)]
A. Where the initial reconciliation attempt fails,
the claimant shall propose 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 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 by written agreement
in order to eliminate the need for a hearing before the Tree Commission
or for litigation.
B. Where the initial reconciliation process
fails and where mediation has not resolved the dispute, the claimant and
the tree owner shall be subject to the findings and order of the commission
following a noticed hearing...
[El Cerrito, CA: City Code Section
10.50.150]
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When the city is the owner of the tree in dispute, a more streamlined procedure
can be used. This procedure essentially calls for assessment of the validity
of the claim in light of the standards in provision 34.
| A claimant who believes in good faith that
the growth, maintenance or location of trees situated on City property
diminishes the beneficial use, economic value, sunlight, or the enjoyment
of views naturally accruing to the claimant's property, may apply to the
City on a form approved by the Public Works Director....All view claims
found by the City to be valid shall be subject to restorative action...
[Sausalito, CA: City Code Section
11.12.040D]
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34.
Standards for resolution of tree disputes
Purpose: To establish standards to judge tree dispute claims.
Key elements:
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-Documentation to be submitted by the complaining party
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-Standards for evaluating views
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-Standards for assessing the degree of view obstruction
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-Standards for judging the positive and negative aspects of corrective
action
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-Considerations for selecting restorative action
Notes: The complaining party is generally required to demonstrate
that view obstruction did not exist at the time they acquired the property.
The claimant is also required to demonstrate that the burdens imposed by
the tree outweigh the benefits that the tree provides.
To minimize the negative impacts on the trees involved, some ordinances
specify a hierarchy of potential corrective actions. Tree removal and topping
should be discouraged, and less drastic steps should be used whenever possible.
| In adjucating all disputes, unless otherwise
specifically provided, the provisions of this chapter are to be utilized
to resolve view claim disputes.
A. The claimant has no right greater than that
which existed at the time of the claimant's acquisition of the property
involved in the view claim and shall provide evidence to prove the extent
of that original view and right.
B. The character of a view shall be determined
by evaluating:
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1. The vantage point from which the view is obtained;
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2. The existence of landmarks or other unique
features in the view; and
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3. The extent to which the view is diminished
by factors other than the tree(s) involved in the claim...
C. The existence and character of the view obstruction
shall be determined by evaluating:
1. The extent of the alleged view obstruction,
expressed as a percentage of the total view, and calculated by means of
a surveyor's transit or by photography or both; and
2. The extent to which landmarks or other unique
features in the view are obstructed.
[El Cerrito, CA: City Code Section
10.20.130]
In resolving the tree dispute, the tree arbitrator
or court shall consider the benefits and burdens derived from the alleged
obstruction within the framework of the purposes of this Article as set
forth is Section 821 in determining what restorative actions, if any, are
appropriate. In proposing any given restorative action the complaining
party shall have the burden of proving that the burdens posed by the tree
owner's trees outweigh the benefits provide by the trees with respect to
the proposed restorative action.
(a) Burdens.
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(1) The hazard posed by a tree 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.
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(2) The extent to which the tree diminishes the
amount of sunlight available to the garden or home of the complaining party.
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(3) The extent to which the tree interferes with
efficient operation of a complaining party's pre-existing solar energy
system...
(b) Benefits.
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(1) Visual quality of the tree, including but
not limited to, species characteristics, size, growth, form, and vigor.
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(2) Location with respect to overall appearance,
design, and/or use of the tree owner's property.
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(3) Soil stability provided by the tree considering
soil structure, degree of slope, and extent of the tree's root system...
[San Francisco, CA: Public Works
Code Section 824]
Any restorative action shall be evaluated based
on the standards of this article and consideration of the following:
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(1) The effectiveness of the restorative action
in reducing the view obstruction....
[Contra Costa County, CA: Code
Section 816-2.612]
All restorative actions shall be undertaken subject
to the following:
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1. Restorative actions must be consistent with
all applicable statutes, ordinances and regulations.
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2. Where possible, restorative actions shall be
limited to the trimming and/or thinning of branches; but, when such is
not a feasible solution, windowing is the preferable solution...
[El Cerrito, CA: City Ordinance
Section 10.50.130G]
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35.
Apportionment of tree dispute resolution costs
Purpose: To establish a method for assigning
costs associated with the dispute resolution process and restorative actions.
Notes: The method by which costs are assigned
should be specified for both private party disputes and private party-city
disputes. Generally, the claimant is assigned the greater share of the
associated costs, and may bear all costs if the claim is rejected.
| ... The costs of all mandated restorative
actions and/or replacement plantings shall be apportioned between the claimant
and the tree owner as mutually agreed to, or in the absence of agreement
as follows: ...
[El Cerrito, CA: City Code Section
10.50.150C(2)]
(a) The complaining party and the tree owner shall
each pay 50 percent of the costs of the arbitrator's personal fee, if any.
(b) The complaining party shall pay 100 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 824(c).
In all other cases the complaining party and the tree owner shall each
pay his or her attorney's fees. Court costs shall be allocated to the parties
at the court's discretion.
[San Francisco, CA: Public Works
Code Section 825]
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Purpose: To provide notice to future property
owners of limitations on the property associated with a tree dispute resolution.
| Any final decision of the tree commission
or the City Council, in the case of an appeal, which provides for limitations
on the property of a tree owner shall be recorded so that record notice
of the decision is given to successors in interest of the tree owner's
property.
[El Cerrito, CA: City Code Section
10.50.202]
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37.
Enforcement of tree dispute resolutions
Purpose: To describe methods for enforcing
the tree dispute resolution process. Key elements:
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-Legal classification of violations
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-Descriptions of available enforcement options
Notes: The local government may choose to
enforce the tree resolution process through its police power, or it may
establish the process as "self-enforcing". In the latter case, enforcement
is normally provided through civil legal action initiated by the complaining
party.
| Violations of this chapter are not misdemeanors
or infractions. Enforcement of this chapter shall be by the involved private
parties. Any claimant may seek to enforce any restorative action mandated
pursuant to this chapter through ordinary legal proceedings.
[Contra Costa County Code Section
816-2.1004]
Failure or refusal of any person to comply with
a final decision under this Chapter or to comply with any provision of
this Chapter shall constitute a misdemeanor and shall be punishable by
a fine of $1,000 or six months in County Jail, or both. Failure or refusal
of any person to comply with a final decision under this Chapter shall
further constitute a public nuisance which may be abated in accordance
with the procedure contained in Chapter 8.24 of the Title...
[Rolling Hills, CA: City Code Section
8.32.070]
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