Division 816 — TREES

Chapter 816-2 - TREE OBSTRUCTION OF VIEWS (—TOV) COMBINING DISTRICT[[19]]

Article 816-2.2 General

Footnotes:

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Editor's note— Ord. No. 2024-21, § II, adopted November 12, 2024, amended Chapter 816-2 in its entirety to read as herein set out. Former Chapter 816-2, §§ 816-2.202—816-2.206, 816-2.402—816-2.426, 8162.602—816-2.616, 816-2.802—816-2.808, 816-2.1002, 816-2.1004, pertained to similar subject matter, and derived from Ord. 84-3.

All land within a land use district combined with a tree obstruction of views (-TOV) combining district is subject to the provisions of this chapter.

(Ord. No. 2024-21, § II, 11-12-24)

The purposes of this chapter are to establish the right of a property owner to seek the restoration of views and sunlight that existed when the property owner purchased their property, and to establish a process by which property owners may seek restoration of these views and sunlight when they are unreasonably obstructed by the growth of trees on another property. This chapter establishes factors to be considered in determining appropriate actions to restore views or sunlight. This chapter acknowledges that trees and views, and the benefits derived from each, may come into conflict. This chapter provides a method for resolving these conflicts so as to provide a reasonable balance between tree-related values and viewrelated values.

(Ord. No. 2024-23, § III(Exh. A), 12-3-24; Ord. No. 2024-21, § II, 11-12-24)

The objectives of, and the justification for, this chapter are to:

(1)

Preserve and promote the aesthetic benefits provided by trees, views of surrounding locale, and access to light.

(2)

Preserve and promote the beneficial use and enjoyment of privately owned land within the county.

(3)

Preserve, maintain, and enhance property values within the county.

(4)

Discourage the planting of tree species and maintenance of trees in a manner that may provide excessive shade and unduly diminish desirable views.

(Ord. No. 2024-21, § II, 11-12-24)

For purposes of this chapter, the following terms have the following meanings:

"Arborist" means:

(1)

A certified arborist who is certified by the International Society of Arboriculture; or

(2)

A consulting arborist who is listed as a member of the American Society of Consulting Arborists.

"Arborist's report" means a written report prepared by an arborist that evaluates the feasibility and impact of a proposed restorative action or actions.

"Claimant" means any owner of real property who believes in good faith that the growth, maintenance, or location of one or more trees situated on the property of another diminishes the beneficial use, economic value, or enjoyment of the claimant's property, and who files a view claim under this chapter.

"Obstruction" means any blocking or diminishing of a view or sunlight by tree growth, maintenance, or location.

"Thinning" means the selective removal of entire branches from a tree so as to improve visibility through the tree or improve the tree's structural condition.

"Topping" means the removal of the upper portion of a tree's trunk or primary leader.

"Tree" means a live woody plant with a single perennial stem or multiple perennial stems.

"Tree owner" means the owner of real property where one or more trees that form the basis for a view claim filed under this chapter are situated.

"Tree removal" means the destruction and removal of any tree by cutting. Tree removal need not include removal of the tree stump or roots, but any remaining portion of the tree may not exceed three feet above grade.

"Trimming" means the selective removal of portions of branches from a tree to modify the tree's form, shape, or profile, or improve the tree's appearance.

"View" means a range of sight including pleasing vistas or scenes from the primary living areas of a residence or from an exterior deck attached to a residence. The term "view" includes both up-slope and down-slope vistas or scenes, but is distant or panoramic range in nature, as opposed to short range. Views

include but are not limited to vistas or scenes of skylines, bridges, distant cities, distinctive geologic features, hillside terrain, wooded canyons, ridges, and bodies of water.

"View claim" means a claimant's verified written basis for arbitration or court action under this chapter.

"Windowing" means the creation of a limited horizontal viewing plane through the head of a tree or trees.

(Ord. No. 2024-21, § II, 11-12-24)

Article 816-2.4 Standards

This article establishes standards for resolving view claim disputes.

(Ord. No. 2024-21, § II, 11-12-24)

A claimant has the right to seek restoration of views or sunlight that existed on the claimant's property when the claimant acquired the property, where the views or sunlight have been unreasonably obstructed by the growth of trees on another property. A claimant has no right to a view greater than that which existed when the claimant acquired the property. A claimant shall provide evidence to prove the extent of the original view and right.

(Ord. No. 2024-21, § II, 11-12-24)

The character of a view is determined by evaluating the following:

(1)

The vantage point(s) from which the view is obtained.

(2)

The existence of landmarks or other unique features in the view.

(3)

The extent to which the view is diminished by factors other than the tree(s) involved in the claim.

(Ord. No. 2024-21, § II, 11-12-24)

The character of the view obstruction is determined by evaluating the following:

(1)

The extent of the alleged view obstruction expressed as a percentage of the total view, as calculated by means of a surveyor's transit or photography or both.

(2)

The extent to which landmarks or other unique features in the view are obstructed.

(Ord. No. 2024-21, § II, 11-12-24)

The extent of benefits and burdens derived from the alleged view obstruction is determined by considering the contribution of the tree(s) to the following factors:

(1)

Visual screening.

(2)

Wildlife habitat.

(3)

Soil stability, as measured by soil structure, degree of slope, and the extent of the tree root system.

(4)

Energy conservation and climate control.

(5)

Interference in efficient operations of a claimant's solar energy systems.

(6)

Effects on neighboring vegetation.

(7)

Visual quality of the tree(s), including but not limited to species characteristics, size, form, texture, color, vigor, and location.

(8)

The economic value of the tree(s), as measured by criteria developed by the American Society of Landscape Architects.

(9)

Other tree-related factors, including but not limited to indigenous tree species, specimen tree quality, rare tree species, tree flammability, tree health, and historical value.

(Ord. No. 2024-21, § II, 11-12-24)

A restorative action is evaluated based on the standards of this article and by considering the following:

(1)

The effectiveness of the restorative action in reducing the view obstruction.

(2)

Any adverse impact of the restorative action on the benefits derived from the tree(s) in question.

(3)

The structural and biological effects of the restorative action on the tree(s) in question.

(4)

The cost of the restorative action, as determined by consultation with licensed landscape architects.

(Ord. No. 2024-21, § II, 11-12-24)

Restorative actions are limited to the following:

(1)

Trimming.

(2)

Thinning.

(3)

Windowing.

(4)

Topping.

(5)

Tree removal with necessary replacement planting.

(6)

Ongoing tree maintenance if necessary to preserve views or sunlight.

(7)

No action.

(Ord. No. 2024-21, § II, 11-12-24)

All restorative actions must be undertaken subject to all of the following:

(1)

Restorative actions must be consistent with all applicable statutes, ordinances, and regulations. A restorative action involving a protected tree must comply with Chapter 816-6, the County Tree Protection and Preservation Ordinance.

(2)

Where possible, restorative actions are limited to the trimming or thinning of branches, but when trimming or thinning is not a feasible solution, windowing is the preferable solution.

(3)

Topping may be considered only if thinning, trimming, or windowing of branches is not a feasible solution.

(4)

Tree removal may only be considered when all other restorative actions are judged to be ineffective. Tree removal must be accompanied by replacement plantings of appropriate plant material necessary to restore the maximum level of benefits lost due to tree removal. Replacement plantings can be required on the tree owner's or the claimant's property. If tree removal will eliminate or significantly reduce the tree owner's benefits of shading, visual screening, or privacy, replacement screen plantings shall, at the tree owner's option, be established before tree removal occurs.

(5)

A tree owner may choose tree removal with replacement plantings as an alternative to trimming, thinning, windowing, or topping.

(6)

All trimming, thinning, windowing, topping, or removal required under this chapter must be performed by a qualified tree trimmer or as approved by the tree arbitration board.

(7)

A tree arbitration board may require ongoing tree maintenance if necessary to preserve views or sunlight determined to exist when the claimant purchased their property.

(Ord. No. 2024-21, § II, 11-12-24)