Chapter 8.63 — MANDATORY GOVERNMENT HAZARD TREE REMOVAL PROGRAM

Editor's note— Ord. No. 604, § 1, adopted February 23, 2021, effective February 23, 2021, repealed the former Ch. 8.63, §§ 8.63.010—8.63.150, and § 3 of the same enacted a new Ch. 8.63 as set out herein and later amended. Former Ch. 8.63 pertained to similar subject matter and derived from Ord. No. 602, adopted December 8, 2020, effective December 8, 2020.

Any tree that was fire damaged in the Camp Fire and that is in imminent danger of falling onto an eligible road or parcel is a hazardous tree that must be removed to eliminate the imminent threat to the public at large. This chapter establishes a hazard tree removal program that is mandatory and sets forth the manner in which hazardous trees will be identified and removed.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

Hazard tree removal program shall take effect immediately upon adoption of this chapter and shall remain in effect until the removal of hazard trees has been completed.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

"Arborist." The term "arborist" shall be defined as an ISA certified arborist with a tree risk assessment qualification (TRAQ).

"Arborist's/forester's certification." The term "arborist's/forester's certification" shall be defined as a written certification verifying that all hazard trees have been removed from a parcel participating in the private tree program. The certification shall be made and executed by an arborist and/or forester as defined in this section. The arborist or forester shall provide evidence of the required qualifications of this section.

"Eligible road(s) or parcel(s)." The term "eligible road(s) or parcel(s)" shall be defined as a road, right-of-way or parcel included in one of the following categories:

A.

A public road or right-of-way;

B.

An improved public property; or

C.

A private road or right-of-way that:

Connects two (2) public roads;

Is primarily used as a right-of-way to a public property; or

Was used for waste collection services.

Eligible roads or parcels are set forth in the map attached hereto as Exhibit A.

"Enforcement officer." The term "enforcement officer" shall be defined as the town manager of the town or his/her designee(s). Such designee(s) may be a town employee(s) or third-party provider(s).

"Forester." The term "forester" shall be defined as a registered professional forester, qualified pursuant to California Public Resources Code Section 752, "Professional Forester."

"Government hazard tree removal program." The term "government hazard tree removal program" shall be defined as the hazard tree removal program operated by the California Office of Emergency Services (CalOES) for the Camp Fire area in conjunction with Butte County, the town of Paradise, and other state and federal agencies.

"Government hazard tree removal program right of entry permit." The term "government hazard tree removal program right of entry permit" shall be defined as the permit for providing hazard tree removal on private property approved by CalOES for use in the cleanup after the Camp Fire.

"Hazard tree." The term "hazard tree" shall be defined as a wildfire-damaged tree that in the professional opinion of an arborist and/or forester:

A.

Has been so severely damaged by the Camp Fire that its structural integrity is compromised; and

B.

Poses an imminent danger of falling onto an eligible road or parcel.

For purposes of this chapter, "imminent danger" means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five (5) years.

A map reflecting eligible roads in the town is attached hereto as Exhibit A.

"Inspection access form." The term "inspection access form" shall be defined as the permit for providing access to the enforcement officer to inspect private property of owners opting to use the private hazard tree removal program approved by the town for use in the cleanup after the Camp Fire.

"Private hazard tree removal program." The term "private hazard tree removal program" shall be defined as an alternative to the government hazard tree removal program, which provides the property owner with the option of identifying and removing hazard tree(s) on their property at their own cost.

"Town." The term "town" shall be defined as the town of Paradise.

"Town council." The term "town council" shall be defined as the town council of the town of Paradise.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

Editor's note— Exhibit A is on file in the office of the town clerk.

A.

The government hazard tree removal program was set up to remove all hazard trees at no out-of-pocket cost to the property owners enrolled in that program. If a property owner does/did not participate in the government hazard tree removal program, and there are hazard trees on their property, the owners are required to remove such trees at their own cost.

B.

To participate in the government hazard tree removal program, property owners shall have completed and submitted a government hazard tree removal program right of entry permit by not later than December 31, 2020. The government hazard tree removal program right of entry permit shall function as the sole permit and authorization for participation in the government hazard tree removal program. Notwithstanding any contrary provision in this code, no town approvals or permits for hazard tree removal shall be required for properties participating in the government hazard tree removal program, other than the government hazard tree removal program right of entry permit.

C.

If property owners whose property contains hazard trees do not participate in the government hazard tree removal program (at no out-of-pocket cost to owner) or the private hazard tree removal program (all costs paid by owner), the town council will enforce this and all other laws and ordinances available to the town in connection with the abatement of hazard tree removals and charge the owners with any administrative and abatement costs related to such enforcement as described below.

D.

In implementing this program, property owners who have applied for building permits shall be given priority in the government hazard tree removal program.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

Maintaining a hazard tree is prohibited and constitutes a public nuisance subject to this chapter. A violation of any provision of this chapter shall be deemed to be a public nuisance and subject to any enforcement process available at law.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

It is the intent of the town council that this chapter may apply to the abatement of hazard trees threatening eligible roads or parcels within the town.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

A.

As an alternative to the government hazard tree removal program, the private hazard tree removal program provided the property owner with the option of identifying and removing hazard tree(s) on their property at their own cost. To participate in the private hazard tree removal program, a property owner shall have submitted either of:

An inspection access form; or

An arborist's/forester's certification for his or her property to the Butte County Right of Entry (ROE) Center by not later than February 1, 2021.

Following the property owner's identification and removal of hazard trees and submittal of an inspection access form, the private hazard tree removal program shall require the enforcement officer to make a visual confirmation of the removal of the hazard trees on the subject property. This visual inspection of compliance with the private hazard tree removal program shall be sufficient for meeting the requirements of this section. Whether the hazard tree removal is adequate shall be in the sole discretion of the enforcement officer. In the alternative, a submittal of a licensed arborist's/forester's certification from the property owner shall be sufficient for meeting the requirements of this section.

B.

Notwithstanding anything herein to the contrary, in the private tree program, owners may choose to temporarily retain and process felled hazard trees which were standing on their property. This temporary retention and utilization by the owner shall be permitted only to the extent felled hazard trees and incidental foliage, slash, tree branches or limbs and chipped or mulched vegetation do not constitute a fire hazard as prohibited by applicable law, including but not limited to California Public Resources Code Section 4291 et seq., Title 19 of the California Code of Regulations and Chapter 15.09 of this code. Such requirements include but are not limited to the following:

In storing such hazard trees prior to utilization, an owner shall be required to:

a.

Maintain a setback of no less than one hundred (100) feet from any inhabited building or structure;

b.

Maintain a setback of no less than thirty (30) feet from any uninhabited building or structure; and

c.

Maintain a setback around the parcel's property lines of no less than thirty (30) feet wide.

If an owner utilizes felled hazard trees for wood chips, the owner shall be required to spread the wood chips to a depth of no greater than three (3) inches while maintaining a setback of no less than five (5) feet from any building or structure.

If owner utilizes felled hazard trees for firewood, the owner shall be required to cut and neatly stack firewood that is ready for use in standard size wood stove or fireplace while maintaining a setback of no less than ten (10) feet from any building or structure.

If any temporary retention and utilization of hazard trees constitutes a fire hazard, it is a public nuisance and may be abated using any available legal remedy. If the owner chooses to temporarily retain and process the felled hazard trees, the owner is required to utilize such hazard trees prior to the enforcing officer's visit to the property to confirm compliance with the private tree program.

For the purposes of this section, any temporary retention and utilization of felled hazard trees by the property owner is not a temporary log storage yard (aka: log deck) as described in Chapter 15.09 of this code. Owners may not receive felled trees from other properties.

C.

The county and the town shall utilize the state and federal standards and cleanup goals of the government hazard tree removal program as the standards for the private hazard tree removal program, including but not limited to the criteria for determining whether a tree is a hazard tree. Under the supervision of the enforcement officer, the town may administratively update these standards as necessary to address ongoing changes in the administration of the government hazard tree removal program and the need to efficiently remove hazard trees from the community.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

A.

Notwithstanding any other provision of this code, during the duration of this urgency ordinance, when directly associated with a hazard tree removal program authorized by this chapter, the town planning director is empowered to grant a temporary use permit to authorize or conditionally authorize the following land use within all zones except for the agricultural-residential, rural-residential, and town-residential zones:

General vehicle/equipment storage as defined in Section 17.04.500 of this code not to include any tree/vegetation processing activities.

B.

The planning director may authorize such temporary storage use based on substantial evidence that:

The temporary storage use shall not adversely impact the public health, safety, or convenience or create undue traffic hazards or congestion.

The temporary storage use shall not adversely interfere with the permitted use, other land uses and activities on the site or in the general vicinity.

The temporary storage use shall be conducted in a manner compatible with the land uses in the general vicinity.

C.

The planning director may establish such additional conditions as necessary to ensure land use compatibility and to minimize potential negative impacts, including but not limited to hours and frequency of operation, temporary arrangements for parking and circulation, requirements for screening or enclosure, and guarantees for site restoration and cleanup following the temporary storage use.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

No application for a town development permit with hazard trees shall be considered complete until the applicant has entered into a government hazard tree removal program or a private hazard tree removal program. This section shall not apply to permits relating to power, sewer or other utilities for temporary dwellings.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

A.

Properties that contain hazard trees and that do not have either (1) an approved government hazard tree removal program right of entry permit; or (2) an approved inspection access form for the private hazard tree removal program; or (3) an approved arborist's/forester's certification by the deadline set by the town council, are declared a public nuisance and health hazard and such properties may be abated pursuant to this chapter.

B.

The town council may set a deadline for the completion of hazard tree removal by resolution. Properties that have hazard trees after that deadline are declared a public nuisance and health hazard and such properties may be abated pursuant to this chapter.

The town council's intent is to facilitate orderly remediation of a large-scale disaster. Nothing in these deadlines shall limit the authority of the town to abate hazards more quickly where required by exigent circumstances.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

A.

Whenever the enforcement officer determines that a public nuisance (as specified in this chapter) exists, he or she may use any legal remedies available under California law and this chapter to address and abate the public nuisance, including but not limited to the abatement procedures set forth in Section 8.63.140 of this chapter.

B.

The town may, in its sole discretion, abate a violation of this chapter by the prosecution of a civil action, including an action for injunctive relief, without first going through the administrative procedures set forth herein. The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings, prohibiting the maintenance of a violation of this chapter, or requiring compliance with other terms.

C.

If a public nuisance is found to be present on the property in violation of this chapter:

The town may also abate a violation of this chapter through the abatement process established by this chapter or by Government Code Sections 38773 and 38773.5.

The enforcement officer shall pursue payment for abatement and administrative costs from the owner and the owner of the property shall be responsible for paying all of the town's abatement costs and administrative costs.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

A.

When an owner maintains a hazard tree on his or her property that is deemed to be a public nuisance pursuant to this chapter, the burden of proof shall rest with the enforcement officer making the allegation or determination and shall be based on a preponderance of the evidence as follows:

Evidence supporting an allegation of the existence of a public nuisance as described in this chapter shall demonstrate that:

The property has one or more hazard trees on the property; and

The property owner:

a.

Has not entered into the government hazard tree removal program or private tree program; or

b.

Has not complied with the requirements of the government hazard tree removal program or private tree program.

B.

Abatement of Public Nuisance. Abatement of a condition or circumstance that is alleged to be a public nuisance shall be encouraged to be on a voluntary basis on the part of the violator or, when necessary, performed by official action.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

No person or entity shall cause, permit, maintain, conduct or otherwise allow a public nuisance as defined in this chapter to exist within the town limits. It shall be the duty of every owner, occupant, and person that controls any land or interest therein within the town limits to remove, abate and prevent the reoccurrence of the public nuisance upon such land.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

A.

Whenever the enforcement officer determines that a public nuisance pursuant to this chapter exists, he or she shall request in writing that the public nuisance be abated within fifteen (15) days. If the condition(s) continue beyond that fifteen (15) day period, the enforcement officer may set the matter for hearing. If the matter is set for hearing, the enforcement officer shall post the property upon which the public nuisance exists and shall mail, with a proof of service, notices to those persons known to be in possession of the property, if any, and to persons shown on the latest county tax roll to be the owners of the property at least ten (10) days prior to the hearing. The notice of hazard tree nuisance abatement hearing shall inform the owner(s) of the basis for the violation and explain that to prevent the accrual of additional costs, the owner(s) must contact the enforcement officer and arrange a time for the enforcement officer to inspect the property, and confirm that the violation(s) have been corrected. Both the mailed and posted notice shall be in substantially the following form:

NOTICE OF HAZARD TREE NUISANCE ABATEMENT HEARING

The owner(s) and occupant(s) of real property described on the latest equalized Butte County tax roll as A.P. No. _______ and having a street address of _______ is (are) hereby notified to appear before a Hearing Officer of the Town of Paradise at _______ on ____, 20, at the hour of _____ o'clock ___m., to show cause, if any there be, why the use of said real property should not be found to be a public nuisance and abated pursuant to Town Ordinance No. _____. The Enforcement Officer for the Hazard Tree Removal Program has determined that conditions exist on the above property which constitute a public nuisance and violate this Ordinance as follows: _______. At the conclusion of the hearing, if a violation is found to have existed at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted on the property, the cost of abating such violation, including, but not limited to, the cost of the Hearing Officer, the cost of prior time and expenses associated with bringing the matter to hearing, the cost of judicially abating the violation, the cost of labor and material necessary to physically abate the violation, and the cost of securing expert and other witnesses may become a lien against the subject property. If an abatement lien is recorded, it will have the same force and effect as an abstract of judgment which is recorded as a money judgment obtained in a court of law. If you fail to appear at the hearing or if you fail to raise any defense or assert any relevant point at the time of hearing, the Town will assert, in later judicial proceedings to enforce an order of abatement, that you have waived all rights to assert such defenses or such points.

In preparing for such hearing, you should be aware that if an initial showing is made by the Town, sufficient to persuade the Hearing Officer that a public nuisance existed on your property at the time the Notice of Hazard Tree Nuisance Abatement Hearing was posted on the property, you will then have the burden of proving that no public nuisance exists on your property. Therefore, you should be prepared to introduce oral and documentary evidence at the hearing proving why, in your opinion, your use of the property is not a public nuisance as defined in Ordinance No. _____.

If an initial showing sufficient to persuade the Hearing Officer that a public nuisance existed on your property is made by the Town, your failure to sustain the burden of showing that no public nuisance existed on the property may result in a decision by the Hearing Officer that a public nuisance did exist, an order to abate the nuisance (which may also result in a later judicial order with the same effect) and that the Town is entitled to recover its Administrative Costs.

Further, if the Hearing Officer finds that a public nuisance continues to exist on your property and you fail to abate the nuisance promptly, the Town may abate the nuisance. If the Town abates the nuisance, you may be responsible for the actual costs of the abatement, including the costs to the Town of the administrative hearing, and such costs may be placed as a lien against your property by the Town.

Finally, if the Hearing Officer finds that a public nuisance existed or exists on your property in violation of Ordinance No. _____, the Town will contend that you are bound by such finding at any subsequent judicial action to enforce the Hearing Officer's order.

IMPORTANT: READ THIS NOTICE CAREFULLY. FAILURE TO APPEAR AND RESPOND TO THE TIME SET FORTH IN THIS NOTICE WILL LIKELY RESULT IN ADMINISTRATIVE AND/OR JUDICIAL ABATEMENT AND TERMINATION OF USES OF OR CONDITIONS ON YOUR PROPERTY WHICH THE ENFORCEMENT OFFICER CONTENDS ARE IN VIOLATION OF ORDINANCE NO. _____. TO PREVENT THE ACCRUAL OF ADDITIONAL COSTS, YOU MUST CONTACT THE ENFORCEMENT OFFICER AND ARRANGE A TIME FOR

THE ENFORCEMENT OFFICER TO INSPECT YOUR PROPERTY AND CONFIRM THAT THE VIOLATION(S) HAVE BEEN CORRECTED.

Dated: _______

CAMP FIRE RECOVERY - HAZARD TREE REMOVAL

ENFORCEMENT OFFICER

By: _______

B.

All hearings conducted under this chapter shall be held before a hearing officer designated by the town.

C.

At the time and place set for the hearing, the hearing officer shall review the enforcement officer's decision ordering cessation of the alleged public nuisance to determine whether such decision conforms to law and is supported by substantial evidence. The hearing officer shall hear testimony and receive written and/or documentary evidence relating to the alleged violation. The hearing officer shall tape record the hearing or engage the services of a certified court reporter to record the hearing and shall preserve the record of the hearing and all photographs and demonstrative and documentary evidence introduced at the time of the hearing for a period of three (3) years.

D.

Within five (5) days after the hearing is closed, the hearing officer shall render his or her written decision relating to the existence or nonexistence of the alleged public nuisance. If a violation is found to have existed at the time the notice of hazard tree nuisance abatement hearing was posted, the decision shall include a statement of the abatement and administrative costs incurred by the town or estimated costs to abate the violation and shall also order that the owner of the property, or persons known to be in possession of the property, abate the violation within a reasonable time, not to exceed ten (10) days. The decision shall contain findings of fact and conclusions of law. A copy of the decision shall be mailed by certified mail, return receipt requested, to the person or persons shown on the last county tax roll to be the owners of the property which is the subject of the hearing and the occupant of such property, if any. All other persons noticed pursuant to this section shall be mailed a copy of the decision by first class mail, postage prepaid.

E.

The decision of the hearing officer shall be final on the date the certified mail set forth in subsection (d) above, is deposited in the mail. The hearing officer shall notify the town clerk of his or her decision and the date upon which the decision became final. If it is the decision of the hearing officer that a public nuisance existed at the time the notice of hazard tree nuisance abatement hearing was posted, the owner of the property shall be responsible for paying all of the town's abatement costs and administrative costs, including but not limited to, those cost items set forth in the notice required by subsection (a) above.

F.

Notwithstanding any other provisions of this chapter, if a final decision of the hearing officer finds that a violation existed at the time the notice of hazard tree nuisance abatement hearing was posted and the public nuisance is not voluntarily abated within the time prescribed, the enforcement officer may abate the public nuisance pursuant to a warrant issued by a court of competent jurisdiction. The owner of the property shall be responsible for paying all of the town's abatement costs and administrative costs, including but not limited to, those cost items set forth in the notice required by subsection (a) above. The enforcement officer shall keep an accounting of the abatement and administrative costs to perform each abatement. Upon completion of the abatement, the enforcement officer shall post the property and send a bill to the owner, and any persons known to be in possession of the property, requesting payment of the town's abatement and administrative costs. The bill shall also state that failure to pay the abatement and administrative costs within fifteen (15) days from service of the bill may result in the recording of a lien against the property.

If the town's abatement and administrative costs are not paid within fifteen (15) days from service of the bill, the enforcement officer shall render an itemized report to the town clerk for submittal to the town council for hearing and consideration regarding the proposed lien. The report shall include the names and addresses of the owners of record and any persons known to be in possession of the property. The report shall also include the date the abatement was ordered, the work performed, the date the abatement was completed, a description of the property subject to the lien, and an itemized account of the town's abatement and administrative costs. At least fifteen (15) days prior to the hearing, the town clerk shall give notice, with an affidavit of service, of the hearing to all persons named in the enforcement officer's report and the enforcement officer shall post the property with a copy of the notice. The notice shall describe the property by assessor's parcel number and street number or other description sufficient to enable identification of the property and contain a statement of the amount of the proposed lien. The notice shall also contain a statement that the town council will hear and consider objections and protests to the proposed lien at the designated time and place.

G.

At the time and place fixed in the notice, the town council shall hear and consider the proposed lien with objections and protests thereto. At the conclusion of the hearing, the town council may make such modifications and revisions to the proposed lien as it deems just and may order that the proposed lien be recorded by the enforcement officer. The lien shall have the same force, priority and effect as a judgment lien.

H.

The notice of abatement lien shall, at a minimum, identify the record owner or possessor of the property, set forth the date upon which abatement of the nuisance was ordered or deemed ordered by the town, describe the real property subject to the lien, set forth the amount of the town's abatement costs and administrative costs incurred to date and, if applicable, the date upon which the abatement was completed. If the abatement has not yet been completed, the notice shall so state and shall also indicate that the lien is a partial lien and that additional abatement costs will be incurred in the future.

It is the intent of the town council that abatement costs and administrative costs incurred after the filing of the notice of abatement lien relate back to the date upon which the lien was recorded for purposes of priority; however, in order to preserve its rights, after all abatement costs and administrative costs have

been incurred and the abatement is complete, the enforcement officer shall cause a supplemental notice of abatement lien to be recorded. The supplemental notice shall contain all of the information required for the original notice and shall also refer to the recordation date and the recorder's document number of the original notice.

I.

The decision of the hearing officer or the town council may be recorded by the enforcement officer. In the event of such recordation and in the further event that the violation is corrected, a notice of such correction shall be recorded. The enforcement officer is authorized to prepare and record a notice of correction. Correction of the violation shall not excuse the property owner's liability for the costs incurred during the administrative abatement process (abatement costs and administrative costs as defined in this chapter). If the property owner has not fully compensated the town for costs incurred during the administrative abatement process, a notice of correction shall not be recorded unless all fees specified in this chapter have been paid. Payment of the fees specified in this chapter does not excuse the property owner's liability for costs incurred during the administrative abatement process (abatement costs and administrative costs as defined in this chapter).

J.

The town may, in its discretion, commence a judicial action to enjoin a violation of this chapter without the necessity of first going through the administrative procedures set forth herein.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

This chapter is cumulative to all other remedies now or hereafter available to abate or otherwise regulate or prevent public nuisances. The town attorney is authorized to initiate judicial enforcement as to a violation of any provision of this chapter without further town council approval.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)

Notwithstanding any other provision of this chapter, when any hazard tree constitutes an imminent threat to the public health or safety based on substantial evidence from an arborist, and where alternate procedures would not result in abatement of that public nuisance within a short enough time period to avoid that threat, the enforcement officer may direct any officer or employee of the town or third-party provider to summarily abate the public nuisance. The enforcement officer shall make reasonable efforts to notify the property owner of the property, but the formal notice and hearing procedures set forth in this chapter shall not apply. No summary abatement shall occur prior to consultation with the town attorney and the issuance of a court search and abatement warrant. The town may nevertheless recover its costs for abating that public nuisance in the manner set forth in this chapter.

(Ord. No. 604, § 3, 2-23-2021, eff. 2-23-2021)