Mar 24 2016

Views and Trees in Piedmont

Many Piedmont residents do not realize Piedmont has laws designed to protect views. Below is the Piedmont viewshed ordinance enacted in 1989.

 SEC. 3.22 VIEWSHED – City Code

3.22.1 Purpose. This section 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 of Piedmont 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.

  1. 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.
  2. 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 Piedmont 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.
  3. It is recognized that trees and views, and the benefits derived from each, may come into conflict. Tree planting locations and species selections may produce both intended beneficial effects on the property where they are planted, and unintended deleterious effects on neighboring properties of equal or higher elevations. 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.
  4. An objective of the Design Review Element of the 1984 Piedmont General Plan is to “preserve and enhance the aesthetic character of Piedmont”. The policy for implementing this objective is to “encourage cooperation between property owners and/or the City to prevent vegetation from obstructing views”. (Piedmont General Plan, 1984, p. 148)

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

  1. Claimant: Any individual who files a bona fide claim as required by the terms and provisions of this Section.
  2. Obstruction: Any blocking or diminishment of a view required by the terms and provisions of this Section.

c. Public Agency: Any City, County, district, other local authority or public body of or within this State.

  1. Public Utility: Any person or entity supplying power, light, communications, water, sewage or similar or associated services to the public or any portion thereof.
  2. Restorative Action: Any specific requirement to resolve a view claim.
  3. Tree Owner: 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.
  4. View Arbitrator: Any landscape architect registered and licensed by the State of California, or any arborists registered and certified by the International Society of Arboriculture.
  5. View Claim: The written basis for arbitration or court action under the terms and conditions of this Section, submitted by the claimant, which clearly establishes the following:

1. 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.

2. 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.

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

4. The failure of personal communication between the claimant and the tree owner to resolve the alleged view obstruction as set forth in Section 3.22.12. 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.

3.22.3 Exemptions The following classes of trees are categorically exempted from the provisions of this Chapter:

  • Quercus agrifolia (California or Coast Live Oak)
  • Umbellularia californica (Bay California Laurel)
  • Acer negundo (Box Elder)
  • Aesculus californica (California Buckeye) –
  • Arbutus menziesii (Madrone)
  • Lithocarpus densifloris (Tan Bark Oak)

b. All trees located on property owned or leased by a Public Agency or a Public Utility. View claims relating to trees located on property owned or leased by the City of Piedmont, while exempt from the provisions of this section, shall be subject to the review of the Park Commission acting pursuant to procedures, standards and conditions approved from time to time by City Council resolution. Decisions of the Park Commission may be appealed to the City Council by the view claimant or any interested party filing a written appeal stating specifically the reasons therefore with the City Clerk within ten (10) days of the decision of the Park Commission, and the determination of the City Council on such appeal shall be final and non-appealable.

3.22.4 View Protection – A person owning property in Piedmont shall have the right to establish a view claim and obtain restorative action according to the terms of this Section.

3.22.5 Standards for Resolution of Claims The following standards shall apply to measure the quality of the view and the character of the view obstruction for the purposes of determining what, if any, restorative action is necessary.

  1. The view claimant shall have no right greater than that which existed in 1980 or at the time of the claimant’s subsequent acquisition of the property involved in the view claim, whichever is later, and shall provide evidence documenting the extent of said view.
  2. The character of the view shall be determined by evaluating:
    1. The vantage point(s) from which the view is obtained.
    2. The existence of landmarks or other unique features in the view.
    3. The extent to which the view is diminished by factors other than the treesinvolved in the claim.
  3. The character of the view obstruction shall be determined by evaluating:
    1. The amount 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.
    2. The quality of the view which is allegedly being obstructed. The quality of the view obstructed shall be determined by comparing the items within the scope of the view with the types of factors listed in the definitions of View set forth above.

d. The extent of benefits derived from the tree(s) in question shall be determined with consideration given to the following factors:

  1. Visual screening provided by the tree(s).
  2. Wildlife habitat provided by the tree(s).
  3. Soil stability provided by the tree(s), as measured by soil structure, degree of slope and extent of tree(s) root system.
  4. Energy conservation and/or climate control provided by the tree(s).
  5. Visual quality for the tree, including but not limited to species characteristics, size, growth, form, vigor, and location.
  6. The economic value of the tree(s) as measured by the criteria developed by the International Society of Arboriculture.
  7. Other tree-related factors, including but not limited to: Indigenous tree species, specific tree quality, rare tree species, and/or historic value

e. Where present due to natural regeneration, the trees listed below shall be specifically identified and be given special consideration in the resolution of the view claim:

  • Acer macrophyllum (Bigleaf Maple)
  • Alnus rhombifolia (White Alder)
  • Fagus sylvatica (Copper Beech)
  • Heteromeles arbutifolia (Toyon)
  • Salix lasiandra (Yellow Willow)
  • Salix lasiolepis (Black Willow)
  • Sambucus caerulea (Blue Elderberry)
  • Sequoia sempervirens (Redwood)

3.22.6 Restorative Action. Restorative action shall be limited to: pruning, thinning, minor topping, or tree removal with or without replacement plantings. Each type of restorative action shall be evaluated based on the above findings and with consideration given to the following factors:

  1. The effectiveness of the restorative action in reducing the view obstruction.
  2. Any adverse impact of the restorative action on the benefits derived from the tree(s) in question
  3. The structural and biological effects of the restorative action on the tree(s) in question.
  4. The cost of the restorative action, as determined by consultation with a certified arborist.

3.22.7 Mitigation of Action. All restorative actions shall be undertaken with consideration given to the following factors:

  1. Restorative actions shall be limited to the pruning or thinning of branches, or both, where possible.
  2. When pruning or thinning of branches, or both, is not a feasible
    solution, minor 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.
  3. Tree removal shall only be considered when all other restorative actions are judged to be ineffective and may, at the tree owner’s option, be accompanied by replacement plantings of appropriate plant materials to restore the maximum level of benefits lost due to tree removal. Replacement plantings, if used, may be on the tree owner’s or the claimant’s property in
  4. 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 (3) hereinabove, the tree owner may elect tree removal with replacement plantings as an alternative to trimming, thinning or topping.
  5. All trimming, topping, thinning and tree removal required under this Section must be performed by a certified arborist.

3.22.8 Resolution Without Action. A view claim may be resolved by the determination that no restorative actions are required.

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

  1. The view claimant and tree owner shall each pay 50% of such costs in those cases involving any tree planted by the tree owner subsequent to the effective date of this Section (October 3, 1988).
  2. The tree owner shall pay 100% of such costs in those cases where:
  1. The tree owner has refused to participate in good faith in the initial reconciliation (Section 3.22.12) or voluntary arbitration processes (Section 3.22.13) and where the view claimant has prevailed at trial or judicial arbitration, or
  2. 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 Section 3.22.9(a).

c. In all other cases, the view claimant shall pay 100% of such costs.

3.22.10 Attorney’s Fees. Each party shall pay his/her own costs and attorneys’ fees except in the case where the dispute goes to trial or judicial arbitration. In the event that an action under this Section is resolved after trial or judicial arbitration in Municipal or Superior Court, the prevailing party shall be entitled to reasonable attorneys’ fees and costs of suit.

3.22.11 Civil Penalty. A tree owner shall be deemed to have violated the provisions of this Section if judgment in favor of a view claimant is obtained after trial or judicial arbitration in either the Municipal or Superior Court. The civil penalty for each violation of the ordinance, which shall be paid to the City, shall be $1,000.00.

3.22.12 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 Section.

3.22.13 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 Section 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 arbitrator. The view arbitrator shall follow the terms and conditions of this Section to reach a fair resolution of the view claim. The view arbitrator shall submit a complete written report to the claimant, the tree owner and the City, which shall make copies of all view arbitrator reports available to any person who so requests and pays for the costs of reproduction. Said report shall include the view arbitrator’s findings with respect to all standards listed in Section 3.22.5 of this Chapter, a complete listing of all mandated restorative actions, and at least three (3) price bids for said restorative actions received from certified 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.

3.22.14 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 Section. 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 Section must promptly notify the City of Piedmont Public Works Department in writing of such action.

3.22.15 Liabilities. The issuance of an arbitration report and decision pursuant to this 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. The issuance of an arbitration report and decision pursuant to this Section shall not create any liability of the City with regard to restorative actions to be performed.

3.22.16 Enforcement.A violation of this Section is not a misdemeanor or an infraction, and the enforcement of this Section 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 Section. In the event that this Chapter is enforced by separate legal action other than the issuance of citations, the cost of removing, replacing or treating such tree(s), as well as attorney’s fees, other City staff costs, and all other costs and expenses of enforcement shall be deemed damages reimbursable to the City by the violating party. (Ord. No. 510 N.S., 7/89)

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