Butte County Municipal Code Art. V Mandatory Hazard Tree Removal Program

Any tree that was fire damaged in the Camp Fire and that is in immediate danger of falling onto an eligible road or parcel is a hazardous tree that must be removed to eliminate the immediate threat to the public at large. This article establishes a hazardous tree removal program that is mandatory and sets forth the manner in which hazardous trees will be identified and removed.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4181, § 2, 3-10-20)

The Hazard Tree Removal Program shall take effect immediately upon adoption of this article and shall remain in effect until the removal of hazard trees has been completed.

(Ord. No. 4171, § 2, 10-22-19)

"Arborist." The term "Arborist" shall be defined as an ISA Certified Arborist with a Tree Risk Assessment Qualification (TRAQ).

"Arborist's/Forester's Certification." The term "Arborist's/Forester's Certification" shall be defined as a written certification verifying that all hazard trees have been removed from a parcel participating in the Private Tree Program. The certification shall be made and executed by an Arborist and/or Forester as defined in this section. The Arborist or Forester shall provide evidence of the required qualifications of this section.

"Board." The term "Board" shall be defined as the Board of Supervisors.

"County." The term "County" shall be defined as the County of Butte.

"Enforcement Officer." The term "Enforcement Officer" shall be defined as the Chief Administrative Officer of the County or his/her designee(s). Such designee(s) may be a County employee(s) or third-party provider(s).

"Eligible Road(s) or Parcel(s)." The term "eligible road(s) or parcel(s)" shall be defined as a road, right-of-way or parcel falling into one of the following categories:

(A) A public road or right-of-way;

(B) An improved public property; or

(C) A private road or right-of-way when the private road:

(1) Connects two public roads;

(2) Is primarily used as a right-of-way to a public property; or

(3) Is used for waste collection services.

Eligible roads or parcels are set forth in the map attached to Ordinance No. 4181 as Exhibit A.

"Forester." The term "Forester" shall be defined as a Registered Professional Forester, qualified pursuant to California Public Resources Code Section 752, "Professional forester."

"Government Hazard Tree Removal Program." The term "Government Hazard Tree Removal Program" shall be defined as the hazard tree removal program operated by the California Office of Emergency Services (CalOES) for the Camp Fire area in conjunction with other state and federal agencies.

"Government Hazard Tree Removal Program ROE." The term "Government Hazard Tree Removal Program ROE" shall be defined as the permit for providing hazard tree removal on private property approved by CalOES for use in the cleanup after the Camp Fire.

"Hazard Tree." The term "hazard tree" shall be defined as:

A wildfire-damaged tree that in the professional opinion of an Arborist and/or Forester:

A. Has been so severely damaged by the Camp Fire that its structural integrity is compromised; and

B. Poses an imminent danger of falling onto an eligible road or parcel.

A map reflecting eligible roads or parcels in the unincorporated portion of the Camp Fire area is attached to Ordinance No. 4181 as Exhibit A.

"Inspection access form." The term "inspection access form" shall be defined as the permit for providing access to the Enforcement Officer to inspect private property of owners opting to use the Private Tree Program approved by the County for use in the cleanup after the Camp Fire.

"Private Tree Program." The term "Private Tree Program" shall be defined as an alternative to the Government Hazard Tree Removal Program, which provides the owner with the option of identifying and removing hazard tree(s) on their property at their own cost.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4180, § 2, 2-11-20; Ord. No. 4181, § 3, 3-10-20)

A. The Government Hazard Tree Removal Program will remove all hazard trees at no out-of-pocket cost to the owner. If an owner does not participate in the Government Hazard Tree Removal Program, and there are hazard trees on their property, the owners are required to identify and remove such trees at their own cost.

B. To participate in the Government Hazard Tree Removal Program, owners must complete and submit a Government Hazard Tree Removal Program ROE. The Government Hazard Tree Removal Program ROE shall function as the sole permit and authorization for participation in the Government Hazard Tree Removal Program. Notwithstanding any contrary provision in Butte County Code, no County approvals or permits for hazard tree removal are required for properties participating in the Government Hazard Tree Removal Program, other than the Government Hazard Tree Removal Program ROE.

C. If owners whose property contains hazard trees do not participate in the Government Hazard Tree Removal Program (at no out-of-pocket cost to owner) or the Private Tree Program (all costs paid by owner), the County will enforce this Article V and charge the owners with any administrative and abatement costs related to such enforcement as described below.

D. In implementing this program, property owners who have submitted an application for a development permit shall be given priority in the Government Hazard Tree Removal Program.

(Ord. No. 4171, § 2, 10-22-19)

Maintaining a hazard tree is prohibited and a public nuisance subject to this article. A violation of any provision of this article shall be deemed to be a public nuisance and subject to any enforcement process available at law.

(Ord. No. 4171, § 2, 10-22-19)

It is the intent of the board of supervisors that this article shall apply to the abatement of hazard trees threatening eligible roads or parcels in the unincorporated areas of the Camp Fire area.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4181, § 4, 3-10-20)

A. As an alternative to the Government Hazard Tree Removal Program, the Private Tree Program provides the owner with the option of identifying and removing hazard tree(s) on their property at their own cost. To participate in the Private Tree Program, owners shall submit either of (1) an inspection access form or (2) an Arborist's/Forester's Certification for their property. Following the owner's identification and removal of hazard trees and submittal of an inspection access form, the Private Tree Program shall require the Enforcement Officer to make a visual confirmation of the removal of hazard trees on the subject property. This visual inspection of compliance with the Private Tree Program shall be sufficient for meeting the requirements of this Section. Whether the hazard tree removal is adequate shall be in the sole discretion of the Enforcement Officer. In the alternative, a submittal of an Arborist's/Forester's Certification shall be sufficient for meeting the requirements of this section.

B. Notwithstanding anything herein to the contrary, in the Private Tree Program, owners may choose to temporarily retain and promptly utilize felled hazard trees which were standing on their property. This temporary retention and utilization by the owner shall be permitted only to the extent felled hazard trees and incidental foliage, slash, tree branches or limbs and chipped or mulched vegetation do not constitute a fire hazard as prohibited by applicable law, including, but not limited to, California Public Resources Code Section 4291 et seq., Title 19 of the California Code of Regulations and Chapter 38A of the Butte County Code. Such requirements include but are not limited to the following:

(1) In storing such hazard trees prior to utilization, an owner shall be required to:

(a) Maintain a setback of no less than one hundred (100) feet from any inhabited building or structure;

(b) Maintain a setback of no less than thirty (30) feet from any uninhabited building or structure; and

(c) Maintain a setback around the parcel's property lines of no less than thirty (30) feet wide.

(2) If an owner utilizes felled hazard trees for wood chips, the owner shall be required to spread the wood chips to a depth of no greater than three (3) inches while maintaining a setback of no less than five (5) feet from any building or structure.

If any temporary retention and utilization of hazard trees constitutes a fire hazard, it is a public nuisance and may be abated using any available legal remedy. If the owner chooses to temporarily retain and utilize felled hazard trees, the owner is required to utilize such hazard trees prior to the Enforcing Officer's visit to the property to confirm compliance with the Private Tree Program.

For the purposes of this Section, any temporary retention and utilization of felled hazard trees by the property owner is not a Temporary Log Storage Yard (AKA: Log Deck) as described in Chapter 53. Owners may not receive felled trees from other properties.

C. The County shall utilize the state and federal standards and cleanup goals of the Government Hazard Tree Removal Program as the standards for the Private Tree Program, including, but not limited to, the criteria for determining whether a tree is a hazard tree. Under the supervision of the Enforcement Officer, the County may administratively update these standards as necessary to address ongoing changes in the administration of the Government Hazard Tree Removal Program and the need to efficiently remove hazard trees from the community.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4174, § 2, 11-5-2019; Ord. No. 4180, § 3, 2-11-20)

A. No application for a County Development permit in the Camp Fire area for a parcel containing hazard trees shall be considered complete until the applicant has entered into the Government Hazard Tree Removal Program or the Private Tree Program. This section shall not apply to permits relating to power, sewer or other utilities for temporary dwellings and the installation of temporary dwellings as provided for in Chapter 53.

B. This section shall not apply to permits for wells or septic systems with the environmental health division of public health.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4181, § 5, 3-10-20)

A. Properties that contain hazard trees and that do not have (1) an approved Government Hazard Tree Removal Program ROE by the deadline set by the Government Hazard Tree Removal Program or (2) either (a) an approved inspection access form for the Private Tree Program or (b) an approved Arborist's/Forester's Certification by the deadline set by the Board, are declared a public nuisance and health hazard and such properties may be abated pursuant to this article.

B. The Board may set a deadline for the completion of hazard tree removal by resolution. Properties that have hazard trees from the Camp Fire after that deadline are declared a public nuisance and health hazard and such properties may be abated pursuant to this article.

The Board's intent is to facilitate orderly remediation of a large scale disaster. Nothing in these deadlines shall limit the authority of the County to abate hazards more quickly where required by exigent circumstances.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4180, § 4, 2-11-20; Ord. No. 4194, § 2, 1-12-21)

A. Whenever the Enforcement Officer determines that a public nuisance (as specified in this article) exists, he or she shall use any legal remedies available under California law to address and abate the public nuisance, including, but not limited to, Chapters 1, 32A, 41 and/or 53 of the Butte County Code.

B. The County may, in its discretion, abate a violation of this article by the prosecution of a civil action, including an action for injunctive relief. The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings, prohibiting the maintenance of a violation of this article, or requiring compliance with other terms.

C. The County may also abate a violation of this article through the abatement process established by Government Code Section 25845.

D. If a public nuisance is found to be present on the property in violation of this article, the Enforcement Officer shall pursue payment for abatement and administrative costs from the owner and the owner of the property shall be responsible for paying all of the County's abatement costs and administrative costs.

(Ord. No. 4171, § 2, 10-22-19; Ord. No. 4194, § 3, 1-12-21)

A. The term "Abatement Costs" means any costs or expenses reasonably related to the abatement of conditions which violate this article of the County Code, and shall include, but not be limited to enforcement, investigation, collection and administrative costs, and the costs associated with the removal or correction of the violation.

B. The term "Administrative Costs," shall include the cost of County staff time reasonably related to enforcement, for items including, but not limited to, site inspections, travel time, investigations, telephone contacts and time spent preparing summaries, reports, notices, correspondence, warrants and hearing packets. The time expended by the Enforcement Officer and Auditor-Controller staff, to calculate the above costs and prepare itemized invoices, may also be recovered.

(Ord. No. 4171, § 2, 10-22-19)

This article is cumulative to all other remedies now or hereafter available to abate or otherwise regulate or prevent public nuisances. The County Counsel is authorized to initiate judicial enforcement as to a violation of any provision of this article without further Board approval.

(Ord. No. 4171, § 2, 10-22-19)

Notwithstanding any other provision of this article, when any hazard tree constitutes an immediate threat to the public health or safety, and where alternative procedures would not result in abatement of that public nuisance within a short enough time period to avoid that threat, the Enforcement Officer may direct any officer or employee of the County or third-party provider to summarily abate the public nuisance. The Enforcement Officer shall make reasonable efforts to notify the owner. No summary abatement shall occur prior to consultation with the Office of County Counsel. The County may nevertheless recover its costs for abating that public nuisance in the manner set forth in this article.

(Ord. No. 4171, § 2, 10-22-19)

a. When an owner maintains a hazard tree on his or her property that is deemed to be a public nuisance pursuant to this article, the burden of proof shall rest with the Enforcement Officer making the allegation or determination and shall be based on a preponderance of the evidence as follows:

Evidence supporting an allegation of the existence of a public nuisance as described in this article shall demonstrate that (A) the property has one (1) or more hazard trees on the property and (B) the property owner (i) has not entered into the Government Hazard Tree Removal Program or Private Tree Program or (ii) has not complied with the requirements of the Government Hazard Tree Removal Program or Private Tree Program.

b. Abatement of Public Nuisance: Abatement of a condition or circumstance that is alleged to be a public nuisance shall be encouraged to be on a voluntary basis on the part of the violator or, when necessary, performed by official action.

(Ord. No. 4194, § 4, 1-12-21)

No person or entity shall cause, permit, maintain, conduct or otherwise allow a public nuisance as defined in this chapter to exist within the unincorporated limits of the County of Butte. It shall be the duty of every owner, occupant, and person that controls any land or interest therein within the unincorporated area of the County of Butte to remove, abate, and prevent the reoccurrence of the public nuisance upon such land."

(Ord. No. 4194, § 5, 1-12-21)

(a) Whenever the Enforcement Officer determines that a public nuisance pursuant to this chapter exists, he or she shall request in writing that the public nuisance be abated within fifteen (15) days. If the condition(s) continue beyond that fifteen (15) day period, the Enforcement Officer may set the matter for hearing. If the matter is set for hearing, the Enforcement Officer shall post the property upon which the public nuisance exists and shall mail, with a proof of service, notices to those persons known to be in possession of the property, if any, and to persons shown on the latest County tax roll to be the owners of the property at least ten (10) days prior to the hearing. The Notice of Hazard Tree Nuisance Abatement Hearing shall inform the owner(s) of the basis for the violation and explain that to prevent the accrual of additional costs, the owner(s) must contact the Enforcement Officer and arrange a time for the Enforcement Officer to inspect the property, and confirm that the violation(s) have been corrected. Both the mailed and posted notice shall be in substantially the following form:

NOTICE OF HAZARD TREE NUISANCE ABATEMENT HEARING

The owner(s) and occupant(s) of real property described on the latest equalized Butte County tax roll as A.P. No._______ and having a street address of _______ is (are) hereby notified to appear before a Hearing Officer of the County of Butte at _______ on _______, 20___, at the hour of _______ o'clock _______m., to show cause, if any there be, why the use of said real property should not be found to be a public nuisance and abated pursuant to the Butte County Code. The Enforcement Officer for the Hazard Tree Removal Program has determined that conditions exist on the above property which constitute a public nuisance and violate Butte County Code section(s) _______, as follows: _______. After hearing, if a violation is found to have existed at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted on the property, the cost of abating such violation, including, but not limited to, the cost of the Hearing Officer, the cost of prior time and expenses associated with bringing the matter to hearing, the cost of judicially abating the violation, the cost of labor and material necessary to physically abate the violation, and the cost of securing expert and other witnesses may become a lien against the subject property. If an abatement lien is recorded, it will have the same force and effect as an abstract of judgment which is recorded as a money judgment obtained in a court of law. If you fail to appear at the hearing or if you fail to raise any defense or assert any relevant point at the time of hearing, the County will assert, in later judicial proceedings to enforce an order of abatement, that you have waived all rights to assert such defenses or such points.

In preparing for such hearing, you should be aware that if an initial showing is made by the County, sufficient to persuade the Hearing Officer that a public nuisance existed on your property at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted on the property, you will then have the burden of proving that no public nuisance exists on your property. Therefore, you should be prepared to introduce oral and documentary evidence proving why, in your opinion, your use of the property is not a public nuisance as defined in the Butte County Code. A copy of Article V of Butte County Code Chapter 53 relating to Hazard Tree abatement hearings is enclosed to assist you in the preparation of your presentation.

If an initial showing sufficient to persuade the Hearing Officer that a public nuisance existed on your property is made by the Enforcement Officer, your failure to sustain the burden of showing that no public nuisance existed on the property may result in a decision by the Hearing Officer that a public nuisance did exist, an order to abate the nuisance (which may also result in a later judicial order to the same effect) and that the County is entitled to recover its Administrative Costs.

Further, if the Hearing Officer finds that a public nuisance continues to exist on your property and you fail to abate the nuisance promptly, the County may abate the nuisance. If the County abates the nuisance, you may be responsible for the actual costs of the abatement, including the costs to the County of the administrative hearing, and such costs may be placed as a lien against your parcel by the County.

Finally, if the Hearing Officer finds that a public nuisance existed or exists on your property, a violation of the Butte County Code, the County will contend that you are bound by such finding at any subsequent judicial action to enforce the Hearing Officer's order.

IMPORTANT: READ THIS NOTICE CAREFULLY. FAILURE TO APPEAR AND RESPOND AT THE TIME SET FORTH IN THIS NOTICE WILL LIKELY RESULT IN ADMINISTRATIVE AND/OR JUDICIAL ABATEMENT AND TERMINATION OF USES OF OR CONDITIONS ON YOUR PROPERTY WHICH THE ENFORCEMENT OFFICER CONTENDS ARE IN VIOLATION OF THE BUTTE COUNTY CODE. TO PREVENT THE ACCRUAL OF ADDITIONAL COSTS, YOU MUST CONTACT THE ENFORCEMENT OFFICER AND ARRANGE A TIME FOR THE ENFORCEMENT OFFICER TO INSPECT YOUR PROPERTY AND CONFIRM THAT THE VIOLATION(S) HAVE BEEN CORRECTED.

Dated: _______

COUNTY OF BUTTE

CAMP FIRE RECOVERY - HAZARD TREE REMOVAL

ENFORCEMENT OFFICER

By:_______

Enclosure: Article V of Butte County Code Chapter 53

(b) All hearings conducted under this chapter shall be held before a Hearing Officer designated pursuant to the protocol set forth in that document entitled the "Butte County Administrative Hearing Officer Program." The program is based upon an alphabetical rotation through attorneys currently under contract through the program.

(c) At the time and place set for the hearing, the Hearing Officer shall review the Enforcement Officer's decision ordering cessation of the alleged public nuisance to determine whether such decision conforms to law and is supported by substantial evidence. The Hearing Officer shall hear testimony and receive written and/or documentary evidence relating to the alleged violation. Additional procedural rules may be adopted by resolution of the Board of Supervisors. The Hearing Officer shall tape record the hearing or engage the services of a certified court reporter to record the hearing and shall preserve the record of the hearing and all photographs and demonstrative and documentary evidence introduced at the time of the hearing for a period of three (3) years.

(d) Within five (5) days after the hearing is closed, the Hearing Officer shall render his or her written decision relating to the existence or nonexistence of the alleged public nuisance. If a violation is found to have existed at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted, the decision shall include a statement of the abatement and administrative costs incurred by the County or estimated costs to abate the violation and shall also order that the owner of the property, or persons known to be in possession of the property, abate the violation within a reasonable time, not to exceed ten (10) days. The decision shall contain findings of fact and conclusions of law. A copy of the decision shall be mailed by certified mail, return receipt requested, to the person or persons shown on the last County tax roll to be the owners of the property which is the subject of the hearing and the occupant of such parcel, if any. All other persons noticed pursuant to this section shall be mailed a copy of the decision by first class mail, postage prepaid.

(e) The decision of the Hearing Officer shall be final on the date the certified mail set forth in subsection (d) above, is deposited in the mail. The Hearing Officer shall notify the Clerk of the Board of Supervisors of his or her decision and the date upon which the decision became final. If it is the decision of the Hearing Officer that a public nuisance existed at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted, the owner of the property shall be responsible for paying all of the County's abatement costs and administrative costs, including, but not limited to, those cost items set forth in the notice required by subsection (a) above.

(f) Notwithstanding any other provisions of this Code, if a final decision of the Hearing Officer or the Board of Supervisors finds that a violation existed at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted and the public nuisance is not voluntarily abated within the time prescribed, the Enforcement Officer may abate the public nuisance pursuant to a warrant issued by a court of competent jurisdiction. The owner of the property shall be responsible for paying all of the County's abatement costs and administrative costs, including, but not limited to, those cost items set forth in the notice required by subsection (a) above. The Enforcement Officer shall keep an accounting of the abatement and administrative costs to perform each abatement. Upon completion of the abatement, the Enforcement Officer shall post the property and send a bill to the owner, and any persons known to be in possession of the property, requesting payment of the County's abatement and administrative costs. The bill shall also state that failure to pay the abatement and administrative costs within fifteen (15) days from service of the bill may result in the recording of a lien against the property.

If the County's abatement and administrative costs are not paid within fifteen (15) days from service of the bill, the Enforcement Officer shall render an itemized report to the Clerk of the Board of Supervisors for submittal to the Board of Supervisors for hearing and consideration regarding the proposed lien. The report shall include the names and addresses of the owner of record and any persons known to be in possession of the property. The report shall also include the date the abatement was ordered, the work performed, the date the abatement was completed, a description of the property subject to the lien, and an itemized account of the County's abatement and administrative costs. At least fifteen (15) days prior to said hearing, the Clerk of the Board of Supervisors shall give notice, with an affidavit of service, of said hearing to all persons named in the Enforcement Officer's report and the Enforcement Officer shall post the property with a copy of the notice. The notice shall describe the property by assessor's parcel number and street number or other description sufficient to enable identification of the property and contain a statement of the amount of the proposed lien. The notice shall also contain a statement that the Board will hear and consider objections and protests to the proposed lien at the designated time and place.

(g) At the time and place fixed in the notice, the Board of Supervisors shall hear and consider the proposed lien with objections and protests thereto. At the conclusion of the hearing, the Board of Supervisors may make such modifications and revisions to the proposed lien as it deems just and may order that the proposed lien be recorded by the Enforcement Officer. The lien shall have the same force, priority and effect as a judgment lien.

(h) The notice of abatement lien shall, at a minimum, identify the record owner or possessor of the property, set forth the date upon which abatement of the nuisance was ordered or deemed ordered by the Board of Supervisors, describe the real property subject to the lien, set forth the amount of the abatement costs and administrative costs incurred to date and, if applicable, the date upon which the abatement was completed. If the abatement has not yet been completed, the notice shall so state and shall also indicate that the lien is a partial lien and that additional abatement costs will be incurred in the future.

It is the intent of the Board of Supervisors that abatement costs and administrative costs incurred after the filing of the notice of abatement lien relate back to the date upon which the lien was recorded for purposes of priority; however, in order to preserve its rights, after all abatement costs and administrative costs have been incurred and the abatement is complete, the Enforcement Officer shall cause a supplemental notice of abatement lien to be recorded. The supplemental notice shall contain all of the information required for the original notice and shall also refer to the recordation date and the recorder's document number of the original notice.

(i) The decision of the Hearing Officer or Board of Supervisors may be recorded by the Enforcement Officer. In the event of such recordation and in the further event that the violation is corrected, a notice of such correction shall be recorded. The Enforcement Officer is authorized to prepare and record a notice of correction. Correction of the violation shall not excuse the property owner's liability for costs incurred during the administrative abatement process (Abatement Costs and Administrative Costs as defined in section 53-90 of this chapter). If the property owner has not fully compensated the County for costs incurred during the administrative abatement process, a notice of correction shall not be recorded unless the fee specified in section 41-9 of this code has been paid. Payment of the fee specified in section 41-9 of this section does not excuse the property owner's liability for costs incurred during the administrative abatement process (abatement costs and administrative costs as defined in section 53-90 of this chapter).

(j) The County may, in its discretion, commence a judicial action to enjoin a violation of this chapter without the necessity of first going through the administrative procedures set forth herein.

(Ord. No. 4194, § 6, 1-12-21)