Chapter 12.40 — HAZARDOUS TREES

The ordinance codified in this chapter is enacted in recognition of the following facts and for the following reasons:

A.

Among the features that contribute to the attractiveness and livability of the city are its trees, both native and introduced.

B.

Trees are subject to natural forces that can cause entire trees or individual limbs to fall. Factors contributing to the falling of trees or limbs include the weakened condition of overly mature or diseased trees, high winds, and heavy soil saturation during and after storms.

C.

It is recognized that falling/fallen trees and limbs can pose hazards to both human safety and the well-being of neighboring properties. Owners of neighboring properties may desire the removal or trimming of a tree or trees perceived to be a threat to human safety or the well-being of their property.

D.

It is also recognized that legal remedies alone do not adequately protect owners of neighboring properties. It is, therefore, in the interest of the public health, welfare, and safety to establish another method for the resolution of hazardous tree claims for the purpose of preventing personal injury or damage to neighboring properties.

(Prior code § 7-10.1)

For the purposes of this chapter, the meaning and construction of words and phrases hereinafter set forth shall apply:

"Claimant" means any individual who files a bona fide hazardous tree claim as required by the terms and provisions of this chapter.

"Corrective action" means any specific requirement to resolve a hazardous tree claim.

"Crown reduction" means the reduction in height and/or spread of a tree accomplished through the selective removal of branches and/or trunks such that the lateral to which a branch or trunk is cut is at least one-half the diameter of the cut being made.

"Hazardous tree" means any tree which poses an imminent threat to life or property, as determined by inspection using the criteria established by Section 12.40.030.

"Hazardous tree arbitrator" means any forester registered and licensed by the state of California.

"Hazardous tree claim" means the written basis for arbitration under the terms and conditions of this chapter, submitted by the claimant which clearly presents the following:

The precise nature of the alleged hazardous tree situation including all pertinent and corroborating physical evidence available;

The exact location of the tree alleged to be a hazard, the address of the property upon which the tree is located, and the tree owner's name and address. This requirement may be satisfied by the inclusion of tree location, property address, and tree owner information on a survey or plot plan submitted with the hazardous tree claim;

Any mitigating actions proposed by the parties involved to resolve the alleged hazardous tree claim;

Documentation of personal communication between the claimant and the tree owner which failed to resolve the alleged hazardous tree situation as set forth in Section 12.40.040. The claimant must provide physical evidence that written attempts at reconciliation have been made and failed. Such evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence.

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

"Tree" means any woody perennial plant, usually with one main trunk, attaining a height of at least eight feet at maturity.

"Tree owner" means any individual or entity owning real property in the city upon whose land is located the tree that forms the basis for the filing of a hazardous tree claim.

"Tree removal" means the complete removal of any tree.

(Prior code § 7-10.2)

A.

The hazard that the tree poses to human safety and the well-being of the neighboring property shall be determined by evaluating, among other factors that the arbitrator or its experts deem appropriate:

The health of the tree, including its general vigor;

The presence and extent of disease, insects, or other pathogenic organisms;

The structure and shape of the tree, including its root system;

The presence of any physical defect such as splitting, broken limbs, etc.;

The soil and slope conditions in the vicinity of the tree, including any evidence of erosion and/or upheaval;

The degree of lean from vertical;

The exposure of the trees to the predominant wind direction;

The proximity of the tree to human activities and items of value on the neighboring property; and

The likelihood of the tree causing personal injury or damage to property in the reasonably near future.

B.

Corrective actions may include, but shall not be limited to:

Thinning;

Crown reduction;

Tree removal with replacement planting;

Cabling and bracing.

C.

Corrective actions shall be limited to thinning or cabling/bracing where possible.

D.

When thinning is not a feasible solution, crown reduction shall be preferable to tree removal if it is determined that the impact of crown reduction does not adversely affect the tree's growth pattern or health, or otherwise constitute a detriment to the tree in question.

E.

Tree removal shall only be considered when all other corrective actions are judged to be ineffective and shall be accompanied by replacement plantings of appropriate plant materials to restore, as much as possible, the benefits lost due to tree removal. Replacement plantings may be required on either the tree owner's or the claimant's property.

F.

All corrective actions shall take precedence over the provisions of the tree preservation ordinance as set forth in Chapter 12.36, and no tree removal permit shall be required for corrective actions performed under this chapter.

G.

All thinning, crown reduction, cabling, bracing, and tree removal required under this chapter must be performed by a certified, insured arborist or other party approved by the hazardous tree claimant and tree owner.

(Prior code § 7-10.3)

A.

Initial Reconciliation. A claimant who believes in good faith that a tree situated on the property of another poses a threat to human safety or the well-being of the claimant's property may notify the tree owner in writing of such concerns.

The tree owner shall respond to the claimant within ten working days of receipt of a written hazardous tree claim. The submission of such notification to the tree owner shall be accompanied by personal discussion, if possible, to enable the claimant and the tree owner to attempt to reach a mutually agreeable solution to the alleged hazardous tree situation.

B.

Arbitration. In those cases where the initial reconciliation process fails, the claimant and the tree owner may elect binding arbitration by a hazardous tree arbitrator to resolve the alleged hazardous tree situation.

The arbitrator shall be fully qualified under the terms and conditions of this chapter and shall be agreed to by both the claimant and the tree owner. The arbitration agreement may provide for employment of experts, including certified arborists, in order to fully investigate the hazardous tree claim.

The arbitrator shall follow the standards set forth in Section 12.40.030 to reach a fair resolution of the claim within fifteen (15) working days from the date binding arbitration is agreed to by the parties and shall submit a written report to the claimant and the tree owner. Said report shall include the arbitrator's findings with respect to all standards listed in Section 12.40.030, and shall specify all required corrective actions. At least three competitive bids shall be secured by the arbitrator for the required corrective actions.

All required corrective actions shall be fully implemented within ten working days of the delivery of the arbitrator's report to the claimant and the tree owner. The findings of the arbitrator shall be final.

C.

Litigation. In those cases where the initial reconciliation process fails to resolve the hazardous tree claim and binding arbitration as set forth in subsection B of this section is not elected by the parties, civil action may be pursued by the claimant for resolution of the hazardous tree claim under the terms and conditions of this chapter. The claimant shall have the burden of providing the alleged hazardous tree situation and the

suitability of the proposed corrective actions. The party bringing any civil action under this chapter shall promptly notify the city of Oakland, Office of Parks and Recreation, in writing of such action.

(Prior code § 7-10.41)

A.

Claim Filing. A claimant who believes in good faith that a tree situated on city property poses a threat to human safety or to the well-being of the claimant's property may submit a hazardous tree claim to the Office of Parks and Recreation (1520 Lakeside Drive, Oakland 94612).

B.

Investigation. Upon receipt of a hazardous tree claim, the Office of Parks and Recreation shall investigate the claim according to the standards set forth in Section 12.40.030, and shall issue written findings to the claimant within twenty (20) working days of receiving the claim.

C.

Corrective Action. All hazardous tree claims found by the city to be valid shall be subject to corrective action in accordance with Section 12.40.030. Such actions shall be performed by the city.

D.

Appeals. A claimant may appeal to the City Council any decision of the Office of Parks and Recreation granting or denying a hazardous tree claim. The appeal shall be filed within five working days of receipt of written findings from the Office of Parks and Recreation, and shall be made on a form prescribed by and filed with the Office of the City Clerk.

The appeal shall state specifically wherein it is claimed there was either error or abuse of discretion by the Office of Parks and Recreation, or wherein the Office of Parks and Recreation's decision is not supported by the evidence on the record.

Upon receipt of such an appeal, the Office of the City Clerk shall set the time for consideration thereof. The Office of the City Clerk shall notify the Office of Parks and Recreation of the receipt of said appeal and of the time set for consideration thereof. The Office of the City Clerk shall, not less than five days prior to the date set for the appeal hearing, give written notice to the appellant and any known adverse parties, or their representatives, of the time and place of the hearing.

In considering the appeal, the Council shall determine whether the proposed corrective actions conform to the applicable criteria. It may sustain the decision of the Office of Parks and Recreation, or require such changes or impose such reasonable conditions of approval as are, in its judgment, necessary to insure conformity with said criteria. The decision of the Council shall be final.

The appellant shall pay the filing fee established by the city's master fee schedule for the filing of hazardous tree appeals.

(Prior code § 7-10.42)

The claimant shall pay one hundred (100) percent of the costs of filing a hazardous tree claim. The claimant and the tree owner shall each pay fifty (50) percent of the costs of binding arbitration. The tree owner shall pay one hundred (100) percent of the cost of all corrective actions.

(Prior code § 7-10.5)

Each party shall pay their own costs and attorney's fees except in the case where the dispute goes to trial or judicial arbitration. In the event that an action under this title is resolved after trial or judicial arbitration in municipal or Superior Court, the prevailing party shall be entitled to reasonable attorney's fees and costs of suit.

(Prior code § 7-10.6)

A tree owner shall be deemed to have violated the provisions of this chapter if judgment in favor of a hazardous tree claimant is obtained after trial or judicial arbitration in either the municipal or Superior Court. The civil penalty for each violation of this title shall be $1,000 pursuant to Section 217 of the Charter of the city.

(Prior code § 7-10.7)

A.

The issuance of an arbitration report and decision pursuant to this chapter shall not be deemed to establish any public use or access not already in existence with regard to the property for which the arbitration report and decision are issued.

B.

The issuance of an arbitration report and decision pursuant to this chapter shall not create any liability of the city with regard to the hazardous tree or the corrective actions to be performed.

(Prior code § 7-10.8)

A violation of this chapter is not an infraction and the enforcement of this chapter shall be by the private parties involved. The claimant shall have the right to bring injunctive action to enforce any corrective actions mandated pursuant to this chapter.

(Prior code § 7-10.9)