Contra Costa County Municipal Code Ch. 816-2 Tree Obstruction of Views (—tov) Combining District

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, 816-2.602—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 view-related 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)

Article 816-2.6 Procedures

If a claimant 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 or economic value of, or sunlight or enjoyment of views naturally accruing to, the claimant's property, the claimant shall notify the tree owner in writing of those concerns. When a claimant notifies a tree owner of those concerns, the claimant should also attempt to discuss those concerns in person with the tree owner, if possible, to enable the claimant and the tree owner to attempt to reach a mutually agreeable solution to the alleged view obstruction, including a mutual agreement on costs related to any restorative actions or replacement plantings, in accordance with the provisions of this chapter. If the claimant is seeking to establish a view that did not exist when the claimant acquired the property, and if the tree owner agrees to actions not required by this chapter, the claimant should expect to pay all costs of the actions unless the parties agree on a different allocation of costs for the agreed upon actions. Except as otherwise provided in this section, claims related to the establishment of a view that did not exist when the claimant acquired the property are not governed by this chapter and are not reviewable by a tree arbitration board.

(Ord. No. 2024-21, § II, 11-12-24)

(a) If the initial reconciliation attempt is unsuccessful, the claimant may propose mediation by serving on the tree owner a written request for mediation. Acceptance of mediation is voluntary, but the tree owner has no more than thirty days after being served with a written request for mediation to accept or reject the offer of mediation, unless otherwise extended by the claimant. If mediation is accepted, the parties shall mutually agree upon a mediator within ten days after mediation is accepted.

(b) It is recommended that the services of a professionally trained mediator or mediation service be employed. The Department of Conservation and Development will provide, upon request, a list of mediators and mediation services, accompanied by their qualifications, that the parties may review and consider for selection. The fee for mediation services will be determined by the mediator and the parties. The mediator will not have the power to issue binding orders for restorative action but must strive to enable the parties to resolve their dispute at this stage by reaching a mutually agreeable solution to the alleged view obstruction, including a mutual agreement on costs related to any restorative actions or replacement plantings, in accordance with the provisions of this chapter, thereby eliminating the need for binding arbitration, a fact-finding and advisory decision, or litigation.

(Ord. No. 2024-21, § II, 11-12-24)

(a) The Board of Supervisors may establish or designate one or more tree arbitration boards.

(b) If the parties are unable to reach agreement through the initial reconciliation process or with the assistance of a mediator, either the claimant or the tree owner may offer in writing to the other party to submit the dispute to binding arbitration before a tree arbitration board. The initiating party shall serve on the other party by personal service or certified mail, return receipt requested, an agreement executed by the initiating party to submit the dispute to binding arbitration. If the non-initiating party concurs, the non- initiating party shall execute the agreement within thirty days after service. Failure to execute the agreement within thirty days after service is a rejection of binding arbitration.

(c) If the agreement is accepted, the initiating party shall submit a view claim to the Department of Conservation and Development. The filing fee for a view claim will be established by the Board of Supervisors. The initiating party and non-initiating party shall each pay fifty percent of the filing fee, unless the parties agree on a different allocation of filing fee costs. An arborist's report must be submitted with the view claim.

(d) A view claim must clearly establish all of the following:

(1) The precise nature and extent of the alleged view obstruction and the manner in which it diminishes the beneficial use, economic value, or enjoyment of the claimant's property, including all pertinent corroborating evidence available.

(2) The exact location of all trees alleged to cause a view obstruction, the address of the property upon which the trees are located, and the present tree owner's name and address. This requirement may be satisfied by including the tree location, property address, and tree owner information on a valid property survey or plot plan submitted with the view claim.

(3) Any mitigating actions proposed by the parties involved to resolve the alleged view claim.

(4) A showing that personal communication between the claimant and the tree owner to resolve the alleged view obstruction as set forth in this chapter failed. The claimant must provide physical evidence that written attempts at reconciliation were made. This evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence to the tree owner.

(e) The tree arbitration board will review the view claim at a noticed public meeting. At least ten days before the arbitration meeting, notice will be mailed to the affected parties and to the owners of any property within a radius of three hundred feet of the boundaries of the property where the trees are located.

(f) The arbitration proceeding will be based on available evidence and testimony. Either party to the action may be represented by an arborist or present an arborist's report to the tree arbitration board. The tree arbitration board may recommend the services of other experts to the parties. Each party may present witnesses and question witnesses presented by the other party.

(g) The tree arbitration board will issue a written decision to the parties. The decision will include the tree arbitration board's findings with respect to the standards listed in Article 816-2.4, required restorative actions, and an allocation of all costs. The physical implementation of a mandated restorative action must begin within ninety days after the arbitration decision is issued and must be completed within one hundred eighty days after the arbitration decision is issued, unless otherwise specified in the decision. If a mandated restorative action will require a permit pursuant to Chapter 816-6, the County Tree Protection and Preservation Ordinance, the arbitration decision will specify appropriate time limits for obtaining the permit and for beginning and completing the restorative action.

(h) The decision of the tree arbitration board is final and binding and enforceable under Code of Civil Procedure Section 1280 et seq. The Department of Conservation and Development will record in the County Recorder's office any final decision of the tree arbitration board that provides for limitations on the property of a tree owner.

(Ord. No. 2024-21, § II, 11-12-24)

(a) If the parties are unable to reach agreement through the initial reconciliation process or with the assistance of a mediator, or do not agree to binding arbitration, the claimant or the tree owner may elect fact-finding and an advisory decision of the tree arbitration board.

(b) To begin the fact-finding and advisory decision process, the initiating party must submit a view claim and pay the filing fee to the Department of Conservation and Development. The view claim must establish all of the items specified in section 816-2.606(d). An arborist's report must be submitted with the view claim.

(c) The tree arbitration board is the fact-finding board and will render an advisory decision to the parties. The tree arbitration board will review the view claim at a noticed public meeting. At least ten days before the meeting, notice will be mailed to the affected parties and to the owners of any property within a radius of three hundred feet of the boundaries of the property where the trees are located.

(d) The proceeding will be based on available evidence and testimony. Either party to the action may be represented by an arborist or present an arborist's written report to the tree arbitration board. The tree arbitration board may recommend the services of other experts to the parties. Each party may present witnesses and question witnesses presented by the other party.

(e) The proceeding need not be postponed if any party refuses permission to inspect the premises, refuses to participate in the proceeding, or fails to produce evidence.

(f) The tree arbitration board will issue a written advisory decision to the parties. The decision will include the tree arbitration board's factual findings with respect to the standards listed in Article 816-2.4, recommended restorative actions, and a recommended allocation of all costs.

(g) If litigation is required to enforce the decision of the tree arbitration board, there is a rebuttable presumption in favor of the tree arbitration board's decision. The party bringing any private civil action under this chapter must promptly notify the Department of Conservation and Development in writing of the action.

(Ord. No. 2024-21, § II, 11-12-24)

If the initial reconciliation process or mediation fails to resolve the view claim, and if the parties do not choose binding arbitration, the claimant may pursue civil legal action.

(Ord. No. 2024-21, § II, 11-12-24)

Article 816-2.8 Liability and Enforcement

The issuance of a decision by the tree arbitration board does not establish any public use or access not already in existence with regard to the property for which the decision is issued, and does not create any liability for the county or any other public agency or entity with regard to any restorative actions or replacement plantings to be performed.

(Ord. No. 2024-21, § II, 11-12-24)

(a) Violations of this chapter are not misdemeanors or infractions. Enforcement of this chapter is by the involved private parties. A claimant may seek to enforce any restorative action mandated pursuant to this chapter through ordinary legal proceedings.

(b) This chapter does not preclude any person from separately enforcing, if applicable, the provisions of the Solar Shade Control Act, Public Resources Code sections 25980 through 25986.

(Ord. No. 2024-21, § II, 11-12-24)