Westlake Village Municipal Code Ch. 4.11 View Preservation

This Chapter shall be known as the "View Preservation Ordinance."

(Ord. No. 191-04, Enacted, 10/13/04)

The purpose of this Chapter is to establish a right for property owners and legal occupants to preserve views that existed at any time since they purchased or occupied their property in the City. This Chapter is not intended to affect, and shall not be construed as affecting, obligations imposed by restrictive covenants or other agreements.

(Ord. No. 191-04, Enacted, 10/13/04)

The following definitions shall apply for purposes of this Chapter.

"Arbitration" means arbitration proceedings in accordance with California Code of Civil Procedure Section 1280 et seq.

"Arbitrator" means a person who conducts arbitration proceedings in accordance with California Code of Civil Procedure Section 1280 et seq.

"Complaining party" means a property owner or legal occupant who alleges that one or more trees located on the property of another person are causing an unreasonable obstruction of a pre-existing view.

"Mediator" means a neutral third person who assists a complaining party and a tree owner in finding a mutually satisfactory solution to a tree dispute.

"Pre-existing view" means a view that existed from the primary view area of a property at any time since a complaining party purchased or occupied such property.

"Primary view area" means that portion of a residence or nonresidential building (excluding bathrooms, closets, garages and hallways) from which the best view is observed by the occupants. A property shall have only one primary view area.

"Removal" means the elimination of a tree from its present location.

"Restorative action" means conduct undertaken to eliminate an unreasonable obstruction of a pre-existing view.

"Stump growth" means new growth from the remaining portion of a tree trunk, the main portion of which has been cut off.

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

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

"Tree" means a woody plant with the potential to obstruct views. "Tree" includes without limitation shrubs, hedges and bushes.

"Tree owner" means a person owning property containing one or more trees that a complaining party alleges are causing an unreasonable obstruction of a pre-existing view.

"Trimming" means the selective removal of portions of branches from a tree so as to modify the tree's shape or alter its appearance.

"View" means a scene (including an upslope and downslope scene) visible from the primary view area of a property. "View" includes without limitation: skylines; bridges; landmarks; distant cities; distinctive geologic features; hillside terrains; wooded canyons; ridges; and bodies of water. "View" does not include: the sky; yards or structure interiors on neighboring properties; or vacant land that is developable under the zoning ordinance.

(Ord. No. 191-04, Enacted, 10/13/04)

Owners and legal occupants of property in the City shall have the right to preserve a view that existed at any time since they purchased or occupied their property, when such pre-existing view is from the primary view area of the property and subsequent tree growth has caused an unreasonable obstruction of such pre-existing view. To vindicate this right, a complaining party must follow the process prescribed by this Chapter. Nothing in this Chapter precludes a person from pursuing an available legal remedy to address imminent danger caused by one or more trees.

(Ord. No. 191-04, Enacted, 10/13/04)

No person shall plant, maintain or permit to grow any tree that causes an unreasonable obstruction of the view from the primary view area of any property within the City.

(Ord. No. 191-04, Enacted, 10/13/04)

The following non-exclusive criteria shall be considered in determining whether an unreasonable obstruction has occurred.

A. The extent of obstruction of a pre-existing view from the primary view area of the complaining party's property, both currently and at tree maturity.

B. The quality of the pre-existing view being obstructed, including without limitation obstruction of landmarks, vistas or other unique features.

C. The extent to which the complaining party's view has been diminished over time by factors other than tree growth.

D. The extent to which the subject tree(s) provide privacy, soil stability, energy conservation or climate control for the tree owner and neighbors.

(Ord. No. 191-04, Enacted, 10/13/04)

A. Restorative action includes without limitation:

1. Trimming;

2. Thinning or windowing;

3. Topping;

4. Removal with replacement plantings;

5. Removal without replacement plantings.

B. In all cases, the documentable extent of the complaining party's pre-existing view is the maximum limit of restorative action that may be required.

C. Restorative action may include written conditions (including ongoing maintenance) and directions as to appropriate timing of the required conduct. Restorative action may be made to run with the land and apply to successors in interest. Where removal is required, replacement by appropriate species shall be considered.

(Ord. No. 191-04, Enacted, 10/13/04)

When it has been determined that an unreasonable obstruction has occurred, the following factors shall be considered in determining appropriate restorative action.

A. Hazard posed by a tree to persons or structures on the property of the complaining party.

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

C. Aesthetic Quality of the Tree. This includes without limitation species characteristics, size, growth, form and vigor.

D. Location of the tree with respect to overall appearance, design or use of the tree owner's property.

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 climate control provided by the tree.

H. Wildlife habitat provided by the tree.

I. Whether the tree is an oak tree.

(Ord. No. 191-04, Enacted, 10/13/04)

The following guidelines shall apply to the imposition of restorative action.

A. An oak tree permit must be obtained as required by the zoning ordinance.

B. Stump growth generally results in the hazard of weak limbs and its protection is not desirable. When considering restorative action for stump growth, aggressive action is preferred. Restorative action that will result in future stump growth should be avoided.

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

D. When trimming will not resolve an unreasonable obstruction, thinning or windowing may be necessary. These should be supervised by a certified arborist.

E. Topping as a restorative 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 may be required where such removal is essential to preserve a pre-existing view. While normally considered a drastic measure, tree removal can be the preferred solution in many circumstances.

G. Ongoing tree maintenance requirements are strongly recommended as part of restorative action in order to achieve lasting preservation of a pre-existing view.

H. Conditions of restorative action may be recorded and run with the land to guarantee permanent preservation of a pre-existing view.

(Ord. No. 191-04, Enacted, 10/13/04)

A complaining party who believes that tree growth on the property of another has caused an unreasonable obstruction of a pre-existing view from the primary view area shall notify the tree owner in writing of such concerns. The notification should, if possible, be accompanied by personal discussions to enable the complaining party and the tree owner to attempt to reach a mutually satisfactory solution.

(Ord. No. 191-04, Enacted, 10/13/04)

A. If informal negotiation fails, the complaining party must provide the tree owner a written tree claim and a written offer to submit the tree dispute to mediation.

B. A tree claim shall consist of all of the following:

1. A description of the nature and extent of the alleged obstruction, including corroborating physical evidence. Evidence may include without limitation photographic prints, negatives or slides. Such evidence must show absence of the obstruction at a documentable time during the tenure of the complaining party. Evidence to show the date of property acquisition or occupancy must be included.

2. 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 the failure of informal negotiation to resolve the dispute. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence.

4. Restorative action proposed by the complaining party to eliminate the alleged obstruction.

C. The tree owner shall have thirty (30) days from service of the offer to accept or reject mediation. If accepted, the parties shall agree on a mediator within twenty-one (21) days and shall indicate such agreement in writing.

D. 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 complaining party and the tree owner. The mediator shall consider the purpose of this Chapter in attempting to resolve the dispute. The mediator shall not have the power to issue binding orders for restorative action, but shall strive to enable the parties to resolve their dispute by written agreement in order to eliminate the need for arbitration or court action.

(Ord. No. 191-04, Enacted, 10/13/04)

A. If informal negotiation has failed, and if mediation has been declined or also has failed, the complaining party must provide the tree owner a written offer to submit the tree dispute to binding arbitration.

B. The tree owner shall have thirty (30) days from service of the offer to accept or reject binding arbitration. If accepted, the parties shall agree on an arbitrator within twenty-one (21) days and shall indicate such agreement in writing.

C. The arbitrator shall use the provisions of this Chapter to reach fair resolution of the tree claim and shall submit a complete written report to the complaining party and the tree owner. The report shall include the arbitrator's findings, a pertinent list of all mandated restorative actions with any appropriate conditions concerning such actions, and a schedule by which the mandates must be completed. A copy of the arbitrator's report shall be filed with the City Clerk upon completion. The arbitrator's decision shall be enforceable pursuant to the provisions of California Code of Civil Procedure Section 1280 et seq.

(Ord. No. 191-04, Enacted, 10/13/04)

If binding arbitration is declined by the tree owner, then the complaining party may initiate court action to resolve the tree dispute under this Chapter. The complaining party must state in the lawsuit that binding arbitration was offered and not accepted. A copy of the lawsuit shall be filed with the City Clerk. A copy of any court order or settlement shall also be filed with the City Clerk.

(Ord. No. 191-04, Enacted, 10/13/04)

A. The complaining party and the tree owner shall each pay fifty (50) percent of mediation and arbitration fees, unless they agree otherwise or allow the mediator or arbitrator discretion to allocate costs.

B. The court shall allocate costs of a court action unless they are allocated through a settlement.

C. Restorative action costs shall be determined by mutual agreement or through mediation, arbitration, court judgment or settlement.

(Ord. No. 191-04, Enacted, 10/13/04)

The issuance of mediation findings, an arbitration report or a court decision shall not create any liability of the City with regard to restorative actions to be performed. Failure of the City to enforce the provisions of this Chapter shall not give rise to any civil or criminal liability on the part of the City.

(Ord. No. 191-04, Enacted, 10/13/04)

Trees located on City property are exempt from this Chapter.

(Ord. No. 191-04, Enacted, 10/13/04)