Chapter 15.52 — VIEWS

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, and its views of the San Francisco Bay area, obtained from the variety of elevations found throughout the city.

B.

Trees, whether growing singly, in clusters, or in woodland situations, produce a wide variety of significant psychological and tangible benefits for both residents and visitors to the city. Trees contribute to the natural environment of the city by modifying temperatures and winds, replenishing oxygen to the atmosphere and water to the soil, controlling soil erosion, and providing wildlife habitat. Trees contribute to the visual environment of the city by providing scale, color, silhouette and mass, and by creating visual screens and

buffers to separate land uses, and promote individual privacy. Trees contribute to the economic environment of the city by stabilizing property values and reducing the need for surface drainage systems. Trees contribute to the cultural environment of the city by becoming living landmarks of the city's history and providing a critical element of nature in the midst of urban congestion and settlement.

C.

Views, whether of the San Francisco Bay with its vistas of the city of San Francisco, the varied bridges of the Bay Area, numerous islands and ships, or of the Oakland hills with its vistas of trees and the hills themselves, also produce a variety of significant and tangible benefits for both residents and visitors to the city. Views contribute to the economic environment of the city by substantially enhancing property values. Views contribute to the visual environment of the city by providing inspiring panoramic vistas, and creating distinctive supplements to architectural design. Views contribute to the cultural environment of the city by providing a unifying effect, allowing individuals to relate different areas of the city to each other in space and time.

D.

It is recognized that trees and views, and the benefits derived from each, may come into conflict. Tree locations and species selections may produce both intended beneficial effects on the property where they are planted or occur as a result of natural regeneration as well as unintended deleterious effects on neighboring properties of equal or higher elevation. It is therefore in the interest of the public welfare, health and safety to establish standards for the resolution of view obstruction claims so as to provide a reasonable balance between tree and view related values for both private views and protected public views corridor.

(Ord. 12752 (part), 2006; Ord. 12622 (part), 2004; prior code § 7-8.01)

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

"Claimant" means any individual owning real propert in the city who files a bona fide claim as required by the terms and provisions of this Chapter.

"Natural regeneration" means the process by which trees germinate as a result of natural, not human- directed, events such as the seeding by an established tree or the indiscriminate placement of seed by the wind, rain, birds or other animals.

"Obstruction" means any blocking or diminishment of a view attributable to the growth, maintenance or location of trees.

"Private view claim" means the written basis for arbitration or court action under the terms and conditions of this Chapter, submitted by the claimant, which clearly establishes the following:

The precise nature and extent of the alleged view obstruction, including all pertinent and corroborating physical evidence available. Such evidence may include, but is not limited to, photographic prints,

negatives, or slides;

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 the inclusion of tree location, property address and tree owner information on a valid property survey or plot plan submitted with the view claim;

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

The failure of personal communication between the claimant and the tree owner to resolve the alleged view obstruction as set forth in Section 15.52.090A. The claimant must provide physical evidence that written attempts at conciliation have been made and failed. Such evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence.

"Protected public view corridor" means only the wedged-shaped view, afforded by a specific vantage point and designated on the Site Development Map of the North Oakland Hill Area Specific Plan.

"Restorative action" means any specific requirement to resolve a view claim.

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

"Topping" means elimination of the upper portion of a tree's trunk or main leader.

"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 owning real property in the city upon whose land is (are) located the tree(s) that form the basis for the filing of a view claim.

"Tree removal" means the destruction of any tree by cutting, girdling, interfering with the water supply, applying chemicals, or regrading around the base of the trunk.

"Trimming" means the selective removal of portions of branches from a tree so as to modify the tree's shape or profile and/or improve the tree's appearance.

"View" means a distant vista or panoramic range of sight of Oakland, neighboring areas, or the San Francisco Bay that existed at the time a claimant acquired any property in the city. Views include, but are not limited to, skylines, bridges, distant cities, geologic features, hillside terrains and wooded canyons or ridges.

"View arbitrator" means any forester or landscape architect registered and licensed by the State of California, or any arborist registered and certified by the International Society of Arboriculture.

(Ord. 12752 (part), 2006; Ord. 12622 (part), 2004: prior code § 7-8.02)

The following classes of trees, upon reaching a protected size in accordance with Section 12.36.020, are categorically exempted from the provisions of this Chapter:

A.

All Quercus agrifolia (California or Coast Live Oak) and Umbellularia californica (Bay or California Laurel) trees;

B.

The following indigenous tree species, where present due to natural regeneration:

Acer macrophyllum (Bigleaf Maple),

Acer negundo (Box Elder),

Aesculus californica (California Buckeye),

Alnus rhombifolia (White Alder),

Arbutus menziesi (Madrone),

Heteromeles arbutifolia (Toyon),

Salix lasiandra (Yellow Willow),

Salix lasiolepis (Black Willow),

Sambucus caerula (Blue Elderberry),

Sequoia sempervirens (Redwood);

C.

All trees located in city-owned parks;

D.

All city street trees.

(Ord. 12622 (part), 2004: Prior code § 7-8.03)

The planting of vegetation which will obstruct the view plane from the road within any protected public view corridor is prohibited. Trees or vegetation which obstruct a protected public view corridor shall be removed or altered to eliminate or minimize view obstruction in conjunction with development of said property per the vegetation management prescriptions for the North Oakland Hill Area Specific Plan.

For parklands, preserves or other types of open spaces, obstructions of protected public view corridors shall be eliminated or minimized in accordance with said management prescriptions.

(Ord. 12622 (part), 2004: prior code § 7-8.035)

A.

The claimant shall have no right greater than that which existed at the time of the claimant's acquisition of the property involved in the view claim and shall provide evidence to provide the extent of said view.

B.

The character of the view shall be determined by evaluating:

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

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

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

C.

The character of the view obstruction shall be determined by evaluating:

The extent of the alleged view obstruction, measured to arrive at a percentage of the total view. Measurement of the alleged view obstruction shall be calculated by means of a surveyor's transit, or by photography, or both;

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

D.

The extent of benefits and/or burdens derived from the tree(s) in question shall be determined with consideration given to the following factors:

Visual screening provided by the tree(s);

Wildlife habitat provided by the tree(s);

Soil stability provided by the tree(s), as measured by soil structure, degree of slope and extent of tree(s) root system;

Energy conservation and/or climate control provided by the tree(s);

Effects on neighboring vegetation created by the tree(s);

Visual, quality of the tree, including but not limited to species characteristics, size, growth, form, vigor, and location;

The economic value of the tree(s) as measured by the criteria developed by the International Society of Arboriculture;

Other tree-related factors, including but not limited to:

a.

Indigenous tree species,

b.

Specimen tree quality,

c.

Rare tree species,

d.

Historic value.

E.

Restorative actions shall be limited to the following:

No action;

Trimming;

Thinning;

Topping;

Tree removal with necessary replacement plantings.

F.

Each type of restorative action shall be evaluated based on the above findings and with consideration given to the following factors:

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

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

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

The cost of the restorative action, as determined by consultation with licensed arborists located in Oakland.

G.

All restorative actions shall be undertaken with consideration given to the following factors:

All restorative actions must be consistent with the tree preservation ordinance as set forth in Chapter 12.36 of this code.

Restorative actions shall be limited to the trimming and/or thinning of branches where possible.

When trimming and/or thinning of branches is not a feasible solution, topping shall be preferable to tree removal if it is determined that the impact of topping does not destroy the visual proportions of the tree, adversely affect the tree's growth pattern or health, or otherwise constitute a detriment to the tree(s) in question.

Tree removal shall only be considered when all other restorative actions are judged to be ineffective and shall be accompanied by replacement plantngs of appropriate plant materials 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.

In those cases where tree removal eliminates or significantly reduces the tree owner's benefits of visual screening or privacy, replacement screen plantings shall, at the tree owner's option, be established prior to tree removal; notwithstanding the provisions of subsection (G)(4) of this Section, the tree owner may elect tree removal with replacement plantings as an alternative to trimming, thinning or topping.

All trimming, topping, thinning and tree removal required under this Chapter must be performed by a licensed arborist.

(Prior code § 7-8.04)

The cost of all restorative actions, replacement plantings, and arbitration shall be apportioned between the view claimant and the tree owner as follows:

A.

The view claimant and tree owner shall each pay fifty (50) percent of such costs in those cases involving any tree planted or allowed to sprout as a result of natural regeneration by the tree owner subsequent to the effective date of this Chapter (August 5, 1980).

B.

The tree owner shall pay one hundred (100) percent of such costs in those cases where:

The tree owner has refused to participate in good faith in the initial reconciliation or voluntary arbitration processes (Section 15.52.090B) and where the view claimant has prevailed at trial or judicial arbitration; or

In any subsequent dispute between the same parties, to restore any view obstructed by the same tree or trees or any of the plantings substituted for the original offending tree or trees described in subsection A of this Section.

The tree owner plants a tree(s) against the expressed, written objection of the view claimant and the same tree(s) later become subject of a view claim.

C.

In all other cases, the view claimant shall pay one hundred (100) percent of such costs.

(Ord. 12622 (part), 2004: prior code § 7-8.05)

Each party shall pay his or her own costs and attorneys except in the case where the dispute goes to trial or judicial arbitration. In the event that an action under this Chapter 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 § 7-8.051)

A tree owner shall be deemed to have violated the provisions of this Chapter if judgment in favor of a view claimant is obtained after trial or judicial arbitration in either the municipal or Superior Courts. The civil penalty for each violation of the ordinance shall be one thousand dollars ($1,000.00) pursuant to Section 217 of the Charter of the city.

(Prior code § 7-8.052)

A.

Initial Reconciliation. A claimant who believes in good faith that the growth, maintenance, or location of trees situated on the property of another diminishes the beneficial use, economic value and enjoyment of views naturally accruing to the claimant's property may notify the tree owner in writing of such concerns. The submission of said notification to the tree owner should be accompanied by personal discussions, if possible, to enable the claimant and the tree owner to attempt to reach a mutually agreeable solution to the alleged view obstruction under the terms and conditions of this Chapter.

B.

Arbitration. In those cases where the initial reconciliation process fails, the claimant and the tree owner may elect binding arbitration to resolve the alleged view obstruction. The view 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, who shall indicate such agreement in writing. The arbitration agreement may provide for employment of experts representing the parties or may be limited to an investigation of the view claim conducted by the view arbitrator. The view arbitrator shall follow the terms and conditions of this Chapter to reach a fair resolution of the view claim, and shall submit a complete written report to the claimant and the tree owner. Said report shall include the view arbitrator's findings with respect to all standards listed in Section 15.52.050, a complete listing of all mandated restorative actions, and at least three price bids for said restorative actions received from licensed Oakland arborists. All mandated restorative actions shall be implemented within thirty (30) days of the filing of an arbitration report to the claimant and the tree owner. The findings of the view arbitrator shall be final.

C.

Litigation. In those cases where the initial reconciliation process fails to resolve the view claim and binding arbitration is not elected by the parties, civil action may be pursued by a private party for resolution of a view claim under the terms and conditions of this Chapter. The claimant shall have the burden of proving the alleged view obstruction and the suitability of the proposed restorative actions. The party bringing any civil action under this Chapter must promptly notify the city of Oakland, Office of Parks and Recreation, in writing of such action.

(Prior code § 7-8.06)

A.

Claim Filing. A claimant who believes in good faith that the growth, maintenance, or location of trees situated on city property diminishes the beneficial use, economic value and enjoyment of views naturally accruing to the claimant's property pursuant to Section 15.52.050 may notify the city in writing of such concerns. Such claims shall be submitted to the Tree Services Section, Park Services Division, 7101 Edgewater Drive, Oakland, California, 94621.

B.

Investigation. Upon receipt of a view claim, the city shall investigate the claim in accordance with Section 15.52.050 and shall issue written findings to the claimant within thirty (30) days of receiving the view claim.

C.

Restorative Action. All view claims found by the city to be valid shall be subject to restorative action in accordance with Section 15.52.050. Such restorative actions shall be performed by a contractor selected by the claimant, and said contractor shall be required to execute a hold harmless agreement acceptable to the city and dispose of all slash and debris generated by the restorative actions. All private contractors performing view restorative activities on city property shall also be required to furnish evidence of current certification by the International Society of Arboriculture.

D.

Public Posting and Input. All city trees affected by a view claim shall be individually tagged by the city within five days of receipt of a view claim; a summary notice shall also be posted by the city within five days of receipt of a view claim on the nearest utility pole located at the front of the city property involved in the claim. Such summary notices shall be posted in clear view of passersby, and shall contain the phone number where citizens can receive information regarding the view claim and make comments on the view claim for the record. All public input received by the city shall be considered in the preparation of findings by city staff.

E.

Appeals. A claimant or any other interested party may appeal any decision of city staff granting or denying a view claim to the City Council.

The appeal shall be filed within ten days after the date of a decision by city staff, and shall be made on a form prescribed by and filed with the City Clerk. The appeal shall state specifically wherein it is claimed there was either error or abuse of discretion by city staff, or wherein the city staff decision is not supported by the evidence in the record.

Upon receipt of such appeal, the Council shall set the time for consideration thereof. The City Clerk shall notify City staff of the receipt of said appeal and of the time set for consideration thereof. 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 restorative actions conform to the applicable criteria. It may sustain the city staff decision, or require such changes or impose such reasonable conditions of approval as are, in its judgment, necessary to insure conformity to said criteria. The decision of the Council shall be final.

The appellant shall pay the fee established by the master fee schedule of the city for view preservation appeals.

(Prior code § 7-8.061)

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 restorative actions to be performed.

(Prior code § 7-8.07)

A violation of this Chapter is not a misdemeanor, 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 restorative action mandated pursuant to this Chapter.

(Prior code § 7-8.08)