Culver City Municipal Code Ch. 9.12 View Preservation (obstruction from Trees)

The City Council finds and declares as follows:

A. Views, trees and vegetation contribute to the aesthetic value, quality of life, ambiance and economic value of properties within the City of Culver City (“City”).

B Views, whether of the City, the Los Angeles Basin, the surrounding hillside and canyons, or other natural and man-made landmarks, produce a variety of significant and tangible benefits for both residents and visitors.

C. Trees and vegetation (defined in § 9.12.010 as “tree(s)” and hereinafter collectively referred to as “tree(s)”) produce a wide variety of significant psychological and tangible benefits for both residents and visitors to the community. Trees provide privacy, modify temperatures. screen winds, replenish oxygen to the atmosphere, maintain soil moisture, mitigate soil erosion, and provide wildlife habitat. Trees contribute to the visual environment and aesthetics by blending, buffering, and reducing the scale and mass of architecture. Trees within the City provide botanical variety and a sense of history. Trees also create shade and visual screens, and provide a buffer between different land uses. The benefits derived from preexisting views may sometimes come into conflict with trees. The planting of trees and their subsequent growth, particularly when such trees are not properly maintained, can produce unintended harmful effects, both on the property on which they are planted and on neighboring properties.

D. This Chapter shall be applicable to the affected hillside areas in the City, including Hetzler/Tompkins, Blair Hills, and Culver Crest, as shown in gray shading on the map attached to Ordinance No. 2006-002 and incorporated herein by reference as Exhibit A.

(Ord. No. 2006-002 § 1 (part))

A. The purposes of this Chapter are to:

1. Establish the right of a residential real property owner, whose property is located within the affected hillside areas, as depicted in Exhibit A, to preserve preexisting views from unreasonable obstruction by the growth of trees;

2. Establish that real property owners are in need of a process to resolve disputes among themselves concerning views within the immediate vicinity of their property that are unreasonably obstructed by the growth of trees; and

3. Establish a process and evaluation criteria by which real property owners may seek mutually acceptable resolution of such view disputes.

B. The rights and the restoration processes are based upon the following general principles:

1. The City recognizes the desire of many of its residents and real property owners for beautiful and plentiful landscaping, including trees. The City realizes this desire may sometimes conflict with the preservation of preexisting views, and disputes related to views are inevitable;

2. The City also recognizes residents and real property owners cherish their views of and from the hills of the City. The City recognizes views contribute greatly to the quality of life in the City, and promote the general welfare of the entire community;

3. Real property owners and residents should maintain trees on their property in a healthy condition, for both safety reasons and for preservation of preexisting views. Before planting trees, real property owners and residents should consider the potential for view blockage, both currently and at tree maturity. Persons have the right to seek civil remedies when threatened by dangerous tree growth;

4. The City shall establish a process by which a real property owner may seek to preserve and restore views from unreasonable obstruction by the growth of trees, when those views existed at the time they purchased their property. The City shall also establish a list of factors to be considered in determining appropriate actions to restore such views;

5. When a preexisting view-obstruction dispute arises, the parties should act reasonably to resolve the dispute through friendly communication, thoughtful negotiation, compromise, and other traditional means, such as discussions with the appropriate neighborhood or homeowner association. Those disputes not resolved through such means shall follow the procedure established herein;

6. It is the intent of the City for the provisions of this Chapter to receive thoughtful and reasonable application. It is not the intent of the City to encourage clear-cutting or substantial denuding of any property of its tree(s) by overzealous application of provisions of this Chapter; and

7. It is the intent of the City to discourage ill-considered damage to trees, and to promote proper use of trees and landscaping establishment and maintenance.

(Ord. No. 2006-002 § 1 (part))

For the purpose of this Chapter, the meaning and construction of words and phrases is as follows:

ARBITRATOR. A neutral person who will conduct a process similar to a trial: who will hear testimony, consider evidence, and make a binding decision for the disputing parties.

BINDING ARBITRATION. A legal procedure as set forth in Cal. Code Civ. Proc. §§ 1280 et seq.

COMPLAINANT. Any real property owner (or legal occupant with written permission of the property owner) who alleges trees located within the immediate vicinity and on the property of another person are causing unreasonable obstruction of his or her preexisting views.

CROWN REDUCTION/SHAPING. A method of comprehensive trimming that reduces a tree’s height or spread. CROWN REDUCTION entails the reduction of the top sides or individual limbs of a tree, by means of removal of leaders or the longest portion of limbs to a lateral large enough to assume the terminal.

MEDIATION. A process in which a neutral third person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement, as further defined in Cal. Code Civ. Proc. §§ 1775 et seq.

MEDIATOR. A neutral, objective third person that assists people in finding mutually satisfactory solutions to their problem.

PREEXISTING VIEW. A view that existed at the time a complainant became owner or occupant of a property.

PRIMARY LIVING AREA. The portion or portions of a residence from which a view is observed most often by the occupants relative to other portions of the residence. The determination of PRIMARY LIVING AREA is to be made on a case-by-case basis.

RESTORATION ACTION(S). Any specific requirement to resolve a tree dispute as discussed in this Chapter.

STUMP GROWTH. New growth from the remaining portion of the tree trunk, the main portion of which has been cut off.

THINNING. The selective and systematic removal of branches from a tree so as to improve visibility through the tree and/or improve the tree's structural condition.

TOPPING. Elimination of the upper portion of a tree's trunk or main leader.

TREE(S). Any woody plant with the potential to obstruct views, including but not limited to, trees, shrubs, hedges, bushes and other vegetation References to “tree” shall include the plural.

TREE CLAIM. The written basis for mediation, binding arbitration or court action under the provisions of this Chapter.

TREE OWNER. Any person owning real property in the City upon whose land is located a tree alleged by a complainant to cause an unreasonable obstruction to a preexisting view.

TREE REMOVAL. The elimination of any tree from its present location.

TRIMMING. The selective removal of portions of branches from a tree so as to modify its shape or profile or alter its appearance.

VIEW(S). A scene from the primary living area of a residence The term VIEW(S) includes both upslope and downslope scenes, but is generally medium or long range in nature, as opposed to short range. VIEW(S) include, but are not limited to, skylines, landmarks, distant urban settings, distinctive geologic features, hillside terrains, ridges and bodies of water. The term VIEW(S) does not necessarily include an unobstructed panorama of these features.

WINDOWING. A form of thinning by which openings or “windows” are created to restore views.

(Ord. No. 2006-002 § 1 (part))

A. A real property owner shall have the right to preserve and seek restoration of a preexisting view, when such view is from the primary living area and has subsequently been unreasonably obstructed by the growth of one or more trees; provided that such action has not been initiated against the same real property by the complainant, with respect to the same tree, within a two-year time period prior to the initiation of the most recent action.

B. In order to establish such rights pursuant to this Chapter, the person must follow the process established in this Chapter. In addition to the above rights, private parties have the right to seek remedial action for imminent danger caused by trees.

C. Nothing contained in this Chapter is intended to provide any authority or process for the permitting of alterations to or the removal of City-owned and -maintained trees.

(Ord. No. 2006-002 § 1 (part))

The following criteria are to be considered (but are not exclusive) in determining whether unreasonable obstruction has occurred:

A. The extent of obstruction of a preexisting view from the primary living area of the complainant, both currently and at tree maturity.

B. The quality of the preexisting views being obstructed, including obstruction of landmarks, vistas, or other unique view features.

C. The extent to which the trees have grown to obscure the enjoyment of the view from the complainant's property, compared with the view that was available at the time the complainant acquired or occupied his or her home.

D. The extent to which the complainant's preexisting view has been diminished over time by factors other than tree growth.

E. The deleterious effect of the trees upon the complainant's vegetation through loss of heat and light, except that the dropping of leaves or maintenance factors shall not be considered a criterion under this Chapter.

(Ord. No. 2006-002 § 1 (part))

When it has been determined per § 9.12.025 of this Chapter that an unreasonable obstruction has occurred, the following unweighted factors shall be considered in determining the appropriate restoration action:

A. The hazard posed by a tree to any person or structure on the property of the complainant party, including but not limited to, fire danger and the danger of falling limbs or trees.

B. Variety of the tree, its projected rate of growth and maintenance requirements.

C. Aesthetic quality of the tree, including but not limited to, species characteristics, size, growth, form and vigor.

D. Location with respect to overall appearance, design, or use of the tree owner's property (i.e., blending, buffering or reduction in the scale and mass of adjacent architecture).

E. Soil stability provided by the tree, considering soil structure, degree of slope, and extent of the tree's root system.

F. Privacy (visual and auditory) and wind screening provided by the tree to the tree owner and to neighbors.

G. Energy conservation and or climate control provided by the tree.

H. Wildlife habitat provided by the tree.

I. The extent to which the tree provides historical context due to its age, and rare and interesting botanical species.

(Ord. No. 2006-002 § 1 (part))

A If an unreasonable obstruction of a preexisting view exists, a mediator shall recommend, or an arbitrator or court shall order, restoration action based only on this Chapter. Restoration action may include written directions as to appropriate timing for such restoration action to be taken. Restoration action shall be structured and implemented in accordance with the hierarchy established herein. Restoration action includes, but is not limited to, the following:

• 1. Trimming;
• 2. Thinning or windowing;
• 3. Crown reduction;
• 4. Topping;
• 5. Removal with replacement plantings; and
• 6. Removal without replacement plantings.

B. In each case, restoration action shall only be required to the extent a preexisting view is proven by the complainant, based on documentable evidence.

C. Restoration action may include written conditions (including ongoing maintenance) and directions as to appropriate timing of such actions, as well as recordation of an agreement containing covenants or other documentation to memorialize the conditions and make them applicable. Where tree removal is required, replacement by appropriate species should be considered. The tree owner may elect tree removal with replacement plantings as an alternative to trimming, thinning, and topping.

D. In cases where trimming windowing, or other restoration action may affect the health of a tree that is to be preserved, such actions should be carried out in accordance with standards established by the International Society of Arboriculture for use in the State of California.

E. A tree, which has been subject to restoration action under the terms of this Chapter, is exempt from being part of another tree claim for a period of two (2) years after the date of the satisfactory completion of the restoration action

(Ord. No. 2006-002 § 1 (part))

The City provides the following general guidelines concerning restoration actions:

A. Stump growth. Stump growth generally results in the hazard of weak limbs and its protection is not desirable. When considering restoration action for stump growth, aggressive action is preferred. Restoration action, which will result in future stump growth, should be avoided.

B. Trimming. Trimming is the most minor form of physical restoration action. This option is recommended when minor unreasonable obstruction has occurred, provided that ongoing maintenance is guaranteed.

C. Thinning or windowing. When simple trimming will not resolve the unreasonable obstruction, thinning or windowing may be necessary. This action should be supervised by a certified arborist.

D. Crown reduction. Crown reduction may be necessary when thinning and windowing will not resolve the unreasonable obstruction. However, as with thinning and windowing, crown reduction should be supervised by a certified arborist.

E. Topping. Topping as a restoration action should be used with caution. Topping can have deleterious effects on a tree's health, appearance, and cost of maintenance. Topping frequently results in stump growth. Tree removal with replacement plantings may be a preferable alternative

F. Tree removal. Tree removal may be required where it is essential to preserve preexisting views. While normally considered a drastic measure, tree removal can be the preferred solution in certain circumstances.

G. Maintenance. In order to achieve lasting preservation of preexisting views, ongoing tree maintenance requirements are strongly recommended as part of restoration action.

H. Permanence. To help notify subsequent real property owners of their applicability, conditions of restoration action should be memorialized in a recordable document for all affected properties.

(Ord. No. 2006-002 § 1 (part))

The following process shall be used in the resolution of preexisting view disputes between parties:

A. Initial discussions.

1. Complainant, who believes tree growth on the property of another has caused unreasonable obstruction of a preexisting view from the primary living area, shall first notify the tree owner in writing of such concerns;

2. The notification should, if possible, be accompanied by personal discussions to enable the complainant and tree owner to attempt to reach a mutually agreeable solution, and shall be followed up with a written confirmation of any agreed-upon resolution and schedule for the required work of view restoration. If personal discussions fail, then neighborhood associations may be willing to assist with the resolution of the obstruction dispute;

3. The initial notification from the complainant to the tree owner shall provide a copy of this Chapter. In the initial notification, the complainant shall invite the tree owner to view the alleged obstruction from the complainant property, and the tree owner is urged to invite the complainant to view the situation from the tree owner’s property. Failure of the tree owner to respond to the written request for initial discussion within thirty (30) days after the date of the posting shall be deemed a refusal by the tree owner to participate in the initial discussion phase of the process; and

4. After the initial discussion, if the parties do not agree as to the existence and nature of the complainant's obstruction or to the appropriate restoration action, or if the initial discussion is refused, the complainant may proceed with the subsequent dispute resolution process outlined herein with respect to tree claim preparation, mediation binding arbitration, and litigation.

B. Tree claim preparation. In the event the initial discussion process fails to resolve the dispute, the complainant must prepare a tree claim, and provide a copy to the tree owner, in order to pursue mediation, binding arbitration, or litigation under the authority established by this Chapter. A tree claim shall consist of all of the following:

1. Evidence of preexisting view. A written description of the nature and extent of the alleged obstruction, including pertinent and documentable physical evidence. Evidence may include, but is not limited to, photographic prints, negatives or slides, as well as written testimony or declarations from residents living in the area. Such evidence must prove the absence of the obstruction at any documentable time during the tenure of complainant. Evidence confirming the ownership and the date of property acquisition of the complainant’s property must be included;

2. Evidence regarding unreasonable tree blockage. The location of all trees alleged to cause the obstruction, the address of the property upon which the trees are located, and the present tree owner's name and address;

3. Evidence of attempted resolution. Evidence that an initial discussion, as described in § 9.12.045A., to resolve the dispute has been made and has failed. The complainant must provide physical evidence that written attempts at reconciliation have been made and have failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence; and

4. Desired action. Specific view restoration actions proposed by the complainant to resolve the unreasonable view obstruction.

C. Mediation.

1. If the initial discussion attempt fails, then the complainant shall send to the tree owner a written request to participate in a mediation process as a timely means to settle the obstruction dispute;

2. Acceptance of mediation by the tree owner shall be voluntary, but the tree owner shall have no more than thirty (30) days after service of notice to either accept or reject the offer of mediation. Failure to respond shall be deemed formal refusal of the mediation process. If mediation is accepted, then the parties shall mutually agree in writing to the selection of a mediator;

3. It is recommended the services of a professionally trained mediator be employed;

4. The mediation meeting may be informal. The mediation process may include the hearing of viewpoints of lay or expert witnesses, and shall include a site visit to the properties of the complainant and the tree owner. Parties are encouraged to contact immediate neighbors and solicit input; and

5. The mediator shall consider the purposes and policies set forth in this Chapter in attempting to help resolve the dispute. The mediator shall not have the power to issue binding orders for restoration action, but shall strive to enable the parties to resolve their dispute by written agreement, in order to eliminate the need for binding arbitration or litigation.

D. Binding arbitration.

1. In those cases where the initial discussion process fails and where mediation is declined by the tree owner or has failed to resolve the complainant's complaint, the complainant must offer in writing to submit the dispute to binding arbitration.

2. Acceptance of binding arbitration by the tree owner shall be voluntary. The tree owner shall have thirty (30) days after service of notice to accept or reject binding arbitration. Failure to respond shall be deemed a formal refusal of binding arbitration. If accepted, the parties shall agree on a specific arbitrator and shall indicate such agreement in writing; and

3. The arbitrator shall use the provisions of this Chapter to reach a fair resolution of the tree claim, and shall submit a complete written report to the complainant and the tree owner. This report shall include the arbitrator's findings with respect to §§ 9.12.025 and 9.12.030 of this Chapter, a pertinent list of all mandated restoration actions, with any appropriate conditions concerning such actions, and a schedule by which the actions must be completed. Upon completion, a copy of the arbitrator's report shall be filed with the City Clerk. Any decision of the arbitrator shall be enforceable pursuant to the provisions of Cal. Code Civ. Proc. §§ 1280 et seq.

E. Litigation.

1. In those cases where binding arbitration is declined by the tree owner, then civil action may be pursued by the complainant for resolution of the view obstruction dispute under the rights and provisions of this Chapter; and

2. The litigant must state in the lawsuit that binding arbitration was offered and not accepted, and a copy of the lawsuit was filed with the City Clerk. A copy of any order or settlement in the lawsuit shall also be filed with the City Clerk.

(Ord. No. 2006-002 § 1 (part))

A. Cost of mediation and arbitration. Unless the parties agree otherwise, the costs and fees for mediation and arbitration shall be subject to provisions of Cal. Code Civ. Proc. § 1284.2, which states among other things that parties to an arbitration should pay their own costs and a pro rata share of the arbitrator’s fees and costs.

B. Cost of litigation. To be determined by the court or through a settlement.

C. Cost of restoration action. To be determined by mutual agreement, or through mediation, binding arbitration, court judgment, or settlement.

D. Compensation to tree owner. Nothing in this Chapter shall be construed to deny compensation to which a tree owner is entitled under any other provision of law.

(Ord. No. 2006-002 § 1 (part))

The issuance of mediation findings, a binding arbitration report, or a court decision shall not create any liability of the City with regard to the restoration actions to be performed. Failure of the City to enforce provisions of this Chapter shall not give rise to any civil or criminal liabilities by or against the City.

(Ord. No. 2006-002 § 1 (part))

A. A violation of this Chapter is not a misdemeanor or infraction. The enforcement of this Chapter shall be by the private parties involved. The complainant shall have the right to bring injunctive action to enforce any restoration action ordered pursuant to this Chapter.

B Under no circumstances shall the City have any responsibility or obligation to enforce or seek any legal redress, civil or criminal, for any decision made concerning a tree claim.

(Ord. No. 2006-002 § 1 (part))

A. In adopting this Chapter, it is not the intent of the City to affect obligations imposed by an existing easement, already existing City Council and/or Planning Commission entitlements, or a valid preexisting covenant or agreement.

B. It is the intention of the City that all other portions of this Chapter shall remain in effect in the event a portion of it is invalidated by court action.

(Ord. No. 2006-002 § 1 (part))

Trees owned or maintained by the City are exempt from the provisions of this Chapter. For consideration in accordance with policies adopted by the City, requests or complaints regarding trees owned or maintained by the City should be made in writing to the Public Works Director.

(Ord. No. 2006-002 § 1 (part))