View or solar access ordinance provisions (Provisions 33-37)

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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.

• 33. Procedures to be followed in resolving tree disputes
  ➒
  Purpose: To set forth procedures to be followed in resolving disputes over alleged obstruction of views or sunlight by trees.

  Goals: ➒

  Key elements:

  1. -Procedure for notifying the tree owner of the complaint
  2. -Procedure for resolving the claim
  3. -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]

  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]

• 34. Standards for resolution of tree disputes
  ➒
  Purpose: To establish standards to judge tree dispute claims.

  Goals: ➒

  Key elements:

  1. Documentation to be submitted by the complaining party
  2. Standards for evaluating views
  3. Standards for assessing the degree of view obstruction
  4. Standards for judging the positive and negative aspects of corrective action
  5. 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:

  1. The vantage point from which the view is obtained;
  2. The existence of landmarks or other unique features in the view; and
  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.

  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.
  2. The extent to which the tree diminishes the amount of sunlight available to the garden or home of the complaining party.
  3. The extent to which the tree interferes with efficient operation of a complaining party's pre-existing solar energy system...

  (b) Benefits.

  1. Visual quality of the tree, including but not limited to, species characteristics, size, growth, form, and vigor.
  2. Location with respect to overall appearance, design, and/or use of the tree owner's property.
  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:

  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:

  1. Restorative actions must be consistent with all applicable statutes, ordinances and regulations.
  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]

• 35.Apportionment of tree dispute resolution costs
  ➒
  Purpose: To establish a method for assigning costs associated with the dispute resolution process and restorative actions.

  Goals: ➒

  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]

• 36. Recording for notification of future owners
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  Purpose: To provide notice to future property owners of limitations on the property associated with a tree dispute resolution. 

  Goals: ➒

  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]

• 37. Enforcement of tree dispute resolutions
  ➒
  Purpose: To describe methods for enforcing the tree dispute resolution process.

  Goals: ➒

  Key elements:

  1. Legal classification of violations
  2. 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]