Note: Prior ordinance history: Ords. 1335, 1344 and 1430.
(a)
The city council declares that the peace, health, safety and welfare
of the community will be served by the adoption of this chapter. The
city council recognizes that residents, property owners and businesses
cherish their outward views, and that they also cherish the benefits
of plentiful sunlight reaching their buildings and yards. The city
council further recognizes that both outward views and plentiful sunlight
reaching property contribute greatly to the quality of life in Laguna
Beach, and promote the general welfare of the entire community. The
city council also recognizes the desire of many of its residents,
property owners and businesses for beautiful and plentiful landscaping,
including trees. The city council realizes that this desire may sometimes
conflict with the preservation of views and sunlight, and that disputes
related to view or sunlight obstruction are inevitable. Owners and
residents should maintain trees on their property in a healthy condition
for both safety reasons and for preservation of outward views and
sunlight.
(b)
It is a purpose of this chapter to establish a right for property
owners to determine and to preserve those selected viewing locations
or areas from significant or egregious view impairment by the growth
of trees or other vegetation.
(c)
It is a further purpose of this chapter to establish a right for
property owners to restore pre-existing views that have been significantly
or egregiously impaired by trees or other vegetation.
(d)
The determination of a significant or egregious view impairment is
intended to attain an equitable balance between the right to reasonable
use and enjoyment of one's property (landscape vegetation), including
the maintenance of privacy, and the right to protection against unreasonable
loss of views. Equitable balance involves evaluation of the significant
views in relation to the benefits of the existing vegetation when
compared to any considered trimming or any suitable replacement vegetation.
(e)
In order to establish rights pursuant to this chapter, persons must
follow the processes set forth in this chapter.
(f)
This chapter is not intended to encourage or result in the clear-cutting or substantial denuding of any property of its trees or other vegetation by overzealous application of provisions of this chapter. It is not the intent or purpose of this chapter for the city to supersede, limit, supplant or otherwise affect any obligations imposed by private covenants, conditions and restrictions, any deed restrictions, any easements or other similar enforceable private agreements that place more restrictive controls on the growth or placement of trees or other vegetation. It is also not the intent or purpose of this chapter to rescind, modify or otherwise alter any prior city-issued tree or vegetation height entitlement, including without limitation a landscape plan in which vegetation height limits were approved through the design review process specified in Section 25.05.040, or a completed hedge claim pursuant to Chapter 12.14, or a completed view claim pursuant to Chapter 12.16 that was processed prior to December 17, 2014 (the effective date of the ordinance codified in this chapter).
(g)
This chapter applies to all properties within the boundaries of the
city and the city's permitting jurisdiction, excluding property owned
by other governmental entities not subject to the city's regulatory
jurisdiction.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
The following definitions shall apply for purposes of this chapter:
means to take action that changes the vegetation, including,
but not limited to, pruning of the canopy area, cutting, girdling,
changing the water supply, applying chemicals or re-grading around
the feeder root zone of the vegetation.
means a person who has been designated and approved in writing
by the property owner of record to act on his, her or its behalf in
matters pertaining to view preservation or view restoration pursuant
to this chapter.
means the obligation of a claimant to produce substantial
evidence supporting a description of the nature and extent of the
alleged view impairment of pre-existing views. Substantial evidence
means enough relevant information and reasonable inferences from such
information that a fair argument can be made on the basis of the entire
record to support a conclusion, even though other conclusions might
also be reached. Substantial evidence may include, but is not limited
to, documented and date stamped photographic prints, slides, negatives
or movies. In addition, written testimony from persons with actual
knowledge about pre-existing views may be provided regarding the extent
to which pre-existing views have been significantly impaired by vegetation.
Argument, speculation, unsubstantiated opinion or narrative, or evidence
that is erroneous or inaccurate shall not constitute substantial evidence.
means a person with an education and experience in arboriculture
or horticulture and is a Registered Consulting Arborist (RCA) of the
American Society of Consulting Arborists (ASCA) and/or International
Society of Arboriculture (ISA) certified arborist. The certified arborist
shall be chosen by staff from a list of qualified and professionally
trained persons with whom the city has a contract to provide arborist
services.
means the umbrella-like structure created by the overhead
leaves and branches of a tree or shrub.
means the city of Laguna Beach and its city council, employees
and staff and those designated by the city council or city staff to
act on behalf of the city.
means vegetation designated for maintenance by the city.
Such vegetation includes vegetation in city parks, on city properties,
and city maintained street trees within rights-of-way. City-maintained
vegetation is exempt from the provisions of this chapter.
means any real property of which the city is the fee simple
owner of record.
means any residential property owner or authorized agent
who alleges that applicable vegetation located within five hundred
feet of their property is causing a significant view impairment.
means the removal of all the trees on a parcel at one time.
means the removal and disposal of vegetation by sawing or
grinding the limbs, leaves, trunk and stump to the existing grade
as determined by the view restoration committee on a case-by-case
basis. Complete removal shall not include or require the removal and
disposal of a plant's root system.
means the removal of all the trees from an area or all the
leaves from a tree.
means clear and convincing evidence of a significant view
impairment where the view has been diminished over time by the growth
of vegetation and/or poor maintenance practices and/or lack of consistent
maintenance of vegetation and/or placement of vegetation in a view
corridor and/or vegetation out of character with the landscaping in
the neighborhood and, that upon evidence of proof of prior notification
by a claimant, that a significant view impairment exists and there
is an objectively unreasonable failure by the vegetation owner to
cooperate to resolve the view impairment.
means generally dense vegetation so aligned as to form a
physical barrier or fence.
means any tree or stand of vegetation that have been placed on the heritage tree list by the city council pursuant to Chapter 12.08. Any designated heritage tree is exempt from the provisions of this chapter.
means a neutral, objective third party professional negotiator
or facilitator to help disputing parties reach a mutually satisfactory
solution regarding a view claim. The mediator shall be chosen by staff
from a list of qualified and professionally trained mediators with
whom the city has a contract to provide mediation services.
means an unobstructed and wide view of an extensive area
in all directions related to the view in question.
means the removal of vegetation utilizing one of the methods set forth in Section 12.16.050(c)(3)(E)(i) through (v).
means any individual, individuals, corporation, partnership,
firm or other legal entity.
means one or more visual scenes from selected viewing locations
or areas that are not significantly impaired by vegetation and that
existed on or after either the date of acquisition of the claimant's
property or November 4, 2003 (the effective date of Ordinance No.
1430 relating to view preservation), whichever is earlier. It shall
be the claimant's responsibility to sustain the burden of proof for
establishing and substantiating pre-existing views. In the event that
staff and/or the view restoration committee find, based upon a preponderance
of the evidence, that the pre-existing view was obtained in an illegal
manner and/or the documented pre-existing view supplied by the claimant
was enhanced or altered in any manner, the burden of proof shall not
be sustained.
means the primary residential structure located on a lot.
A principal residence and principal residential structure shall include
guest houses, granny flats and secondary residential units provided
that proof of the pre-existing view and a certificate of occupancy
is submitted with the application. Proof of the pre-existing view
from guest houses, granny flats and secondary residential units shall
not pre-date the date of the certificate of occupancy of the structure/unit.
Vacant lots or parcels shall not be considered principal residences
or principal residential structures.
means reasonable protection from intrusive visual observation.
means private property owners adjacent to vegetation in the
public or private right-of-way areas along developed or undeveloped
"paper street" roadways, which are responsible for vegetation maintenance
not specifically designated by the city for city maintenance. Privately
maintained vegetation in right-of-way is subject to the provisions
of this chapter.
means the photographic documentation of the selected views
from a particular site, established pursuant to this chapter and kept
on file by the city.
means steps undertaken to eliminate a significant or egregious
impairment of views, and may include, but is not limited to, partial
removal, complete removal or alteration and maintenance of vegetation
at a designated maximum height by trimming, thinning or reducing the
height or width of vegetation on a vegetation owner's property or
privately maintained vegetation in right-of-way.
means one or more locations or areas chosen by the property
owner(s) from an owner's principal residential structure which are
used to observe one or more views. Hallways, closets, mechanical rooms,
bathrooms and garages shall not be considered or used as selected
viewing locations or areas.
"Shall" is mandatory and "may" is permissive.
means the obstruction or diminishment of a view to such a substantial extent that the desirable features of the view are blocked from viewing, and such obstruction is attributable to vegetation growth, lack of appropriate vegetation maintenance and/or inappropriate vegetation location. Section 12.16.030 establishes criteria for determining significant view impairment.
means the entire dimension of ownership (right-of-way) along
developed roadways, including vehicular paving, sidewalks and planted
or natural areas.
means woody type plants or grasses taller than six feet in height with the potential to obstruct views. "Vegetation" includes without limitation trees, shrubs, grasses, hedges and bushes. However, "vegetation" shall not include any type of vegetation affected by a prior city tree or vegetation height entitlement, such as a landscape plan in which vegetation height limits were approved through the design review process specified in Section 25.05.040 or finalized hedge or view claim. In addition, "vegetation" shall not include heritage trees or city-maintained vegetation.
means a person owning property, including underlying fee-ownership
of privately maintained vegetation in right-of-way, containing vegetation
that a claimant alleges is causing a significant view impairment.
means a sight of a visual scene from a fixed vantage point
or location from a property owner's principal residential structure.
The term "view" does not mean an unobstructed panorama of the features
in a visual scene.
means a disagreement between neighbors regarding vegetation
that may be significantly impairing views.
means the establishment and maintenance of views as they exist when a record of views has been established pursuant to the provisions of Section 12.16.040.
means an application submitted to the city by a claimant
who alleges that a view has been significantly impaired by vegetation.
means the re-establishment of pre-existing views as they existed on or after either the claimant's property acquisition date or November 4, 2003 (the effective date of Ordinance No. 1430 relating to view preservation), whichever is earlier, pursuant to the provisions of Chapter 12.16.
means the five-member committee appointed by the city council
to determine view restoration claims brought by a claimant under the
provisions of this chapter.
means a directive issued by the city, requiring restorative
action to be performed regarding vegetation located on a vegetation
owner's property in order to restore a claimant's view.
means the arrangement of features that form the scenic environment
and may include, but is not limited to, bodies of water, beaches,
white water, coastlines, skylines, islands, ridges, hillside terrains,
canyons, geologic features or landmarks.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
The determination of a significant or egregious view impairment
shall be made by evaluating and balancing the types and benefits of
the view to be protected and the nature and significance of the vegetation
benefits. The following criteria shall be considered in determining
whether a significant view impairment has occurred:
(a)
The quality and veracity of the evidence provided in support of establishing
the extent of the view.
(b)
The nature and extent to which the vegetation obstructs a view.
(c)
The location of the obstruction within a view frame. Vegetation located
within the center of a view is more likely to be found to create significant
impairment than vegetation located on the outer edge of a view.
(d)
Some view frames contain a combination of different view components,
such as a view of the ocean and downtown area (multi-component view);
while some view frames consist entirely of one component, such as
only a view of the ocean (single-component view). Vegetation that
entirely obscures one of the components of a multi-component view
is more likely to be found to create a significant view impairment
than vegetation that impairs a portion of view of a single-component
view.
(e)
The nature and quality of the view being obstructed, including obstruction
of landmarks, vistas or other unique features.
(f)
The nature and extent to which the view has been diminished over
time by factors other than vegetation growth, such as new neighboring
structural additions or residences.
(g)
The nature and extent to which the view contributes to the enjoyment
of the claimant's property.
(h)
The selected viewing areas or locations may make a vantage point
difference in determining the significance of the view impairment.
(i)
The nature and extent of the vegetation obstructing a view and whether
that vegetation has been properly maintained or has transitioned into
a state of overgrowth.
(j)
The nature and significance of the vegetation benefits, including
without limitation privacy, shade, erosion control, enhancement of
outdoor spaces and community aesthetics.
(k)
The nature and extent to which the vegetation blocking a view is
out of character with landscaping practices in the neighborhood.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
(a)
Establishment of a Protected or Preserved View. A property owner
may establish a protected or preserved view by filing for a record
of views with the city. Once a record of views is established by the
city pursuant to subsection B, the protected or preserved views shall
not become subject to significant view impairment. The record of views
does not establish maximum height limits on vegetation in the visual
scene; rather it shall serve as a benchmark for determining significant
view impairment in the future. Established record of views may not
be changed unilaterally by the property owner; provided, however,
that upon application by the property owner to do so, the city may
change an established record of views in the event there is a subsequent
remodel or physical change to the selected viewing locations or areas.
(b)
Record of Views. Upon the filing for a record of views, city staff shall conduct a site visit and photographically document the significantly unimpaired view of the property owner from the property owner's selected viewing locations or areas. A record of views shall be prepared, maintained in the applicable property address files, and noted in any real property report required by Chapter 14.76. Staff shall send written notice to affected vegetation property owners within five hundred feet informing them of the record of views and their associated maintenance responsibilities.
(c)
Record of Views Enforcement Procedure. If a significant view impairment
of an established record of views occurs, the property owner shall
notify the city. If a significant view impairment is confirmed, city
staff shall inform the affected vegetation owner(s) of a potential
view restoration order and allow the vegetation owner thirty days
to perform the necessary restoration action.
If the vegetation owner(s) does not perform the necessary restoration action, then the city may issue a view restoration order and require the restoration action to be completed within ninety days. If compliance is not obtained within ninety days, then the noncomplying vegetation may be declared to be a public nuisance, and the procedures of Chapter 7.24 shall be followed, including the issuance of a formal notice and order to abate.
Any determination of a significant view impairment decision made by city staff may be appealed to the city council. Appeals shall be addressed to the city council on a form prescribed by the city and shall state all grounds for the appeal. Any appeal must be filed with the city clerk within fourteen calendar days of the notice to the vegetation owner regarding the required restoration action. Appeals shall be accompanied by the filing fee as adopted by resolution of the city council. The city manager shall set the date for an appeal public hearing before the city council and shall not be limited by the time period specified in Section 25.05.070(B)(6). Notice shall be provided to the claimant and the record owners and occupants of all properties on which the vegetation at issue in the significant view impairment decision fourteen calendar days prior to the date of the city council hearing of the appeal. If an appeal to the city council is filed and is heard and decided by the city council, then the nuisance abatement appeal provisions (Sections 7.24.090 through 7.24.110) shall not be applicable.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
(a)
Re-Establishment of Pre-Existing Views. A property owner or authorized
agent may make an application to re-establish pre-existing views.
Once pre-existing views are re-established, the applicable vegetation
owners shall maintain the vegetation to preserve the pre-existing
views.
(b)
View Restoration Claim Limitations. Subject to the other provisions of this chapter, a real property owner in the city may initiate a view restoration claim process to re-establish pre-existing views as outlined below. However, a claim to remedy obstruction of views from neighboring properties may only be made regarding vegetation that: (1) is six feet or higher; (2) is located on real property that is within five hundred feet of the claimant's real property boundary; (3) is not a claim pertaining to the same vegetation that has been acted upon by the city against that real property by the same complainant(s) or subsequent owner(s) of the complainant's property unless there are materially different circumstances; and (4) is not one of the types of vegetation exempt from the provisions of this chapter pursuant to Section 12.16.080.
(c)
Process to Re-Establish Pre-Existing Views.
(1)
Initial Communication. A claimant shall first attempt to make a cooperative
attempt to informally contact and have a discussion with the vegetation
owner to resolve the claimant's view dispute issue. If this initial
discussion does not occur or is not successful in resolving the view
dispute issue, then the claimant shall prepare and apply for a notice
of intent to file a view restoration claim. The application shall
recite the claimant's intent to pursue a view restoration claim with
regard to the affected vegetation owner(s) in accordance with this
chapter. The application shall include photographs of the obstructing
vegetation and shall apprise the affected vegetation owner(s) of the
particular view or views the claimant wishes to restore. The application
shall include a signed statement from the claimant agreeing to meet
with a mediator, city staff and each vegetation owner that is to be
named in the pending view restoration claim to attempt to resolve
the view dispute issue between the parties.
(2)
Mediation.
(A)
Upon the filing of the application for a notice of intent to file
a view restoration claim set forth in subsection (B)(1), staff will
review the application for completeness and verify the lot or lots
on which the allegedly obstructing vegetation is located is within
five hundred feet of the property boundary line of the claimant. When
the application is deemed complete, the city shall send by registered
or certified mail with return receipt requested the notice of intent
to file a view restoration claim to the affected vegetation owner(s).
The city's transmittal of the notice of intent to file a view restoration
claim shall request that the vegetation owner(s) attend a pre-application
mediation meeting to discuss the city's view restoration process with
city staff and the claimant. The transmittal shall contain multiple
possible meeting times from which the vegetation owner(s) may select.
The transmittal shall request that the vegetation owner(s) respond
back to the city in writing within fourteen calendar days of the mailing
of the transmittal with a selected date. The transmittal shall explain
the consequences of a failure to respond or to not attend a pre-application
mediation meeting.
(B)
If the vegetation owner(s) responds, the city shall arrange a meeting
between the claimant and the vegetation owner(s), city staff and a
city mediator. Written notice of the meeting shall be provided by
the city to all parties at least seven calendar days prior to the
meeting date. The mediator shall be guided by the provisions of this
chapter. The mediator shall strive to enable the parties to resolve
the view dispute by written agreement in order to eliminate the need
for an application for a view restoration claim, but the mediator
shall not have the power to issue binding orders for restoration action.
The mediator and city staff shall make a site visit prior to the meeting
to view the claimant's obstructed view from the selected view locations
or areas and the vegetation at issue. If desired by all parties, additional
mediation meetings may be held.
(C)
Any agreement reached between the parties as a result of the pre-application
mediation meeting shall be reduced to writing and signed by the claimant
and the vegetation owner(s). Mediation agreements shall be private
agreements, which may have private enforcement provisions, and shall
not be made part of the city-maintained property address files.
(D)
Failure of the vegetation owner(s) to respond to the city's transmittal
or failure to attend an agreed-upon mediation pre-application meeting
shall be deemed to be a refusal of the mediation process. If there
is a refusal of the mediation process by the vegetation owner(s) or
the mediation was unsuccessful in resolving the view dispute, the
claimant may then file an application for a view restoration claim.
If there is a refusal of the mediation process by the claimant, the
claimant may not file and the city shall not process an application
for a view restoration claim.
(3)
View Restoration Claim. If the provisions of subsections (C)(1) and
(C)(2) are exhausted and do not produce a satisfactory result to the
claimant, the claimant may submit an application for view restoration
claim to the city requesting restoration of pre-existing views.
(A)
Application and Notice. Upon the filing of an application for a view
restoration claim, staff will review the application for completeness
and the application shall include the information determined to be
required by the community development director. This information shall
include evidence of the pre-existing views, and it shall be the claimant's
responsibility to sustain the burden of proof for establishing and
substantiating the pre-existing views. In the event that staff, by
a preponderance of the evidence supplied by either party to the claim,
conclude and agree that the preexisting view was obtained in an illegal
manner or conclude that the photographic evidence submitted with the
claim had been altered in any manner, staff may find that the burden
of proof has not been met and deny the claim. When the application
is deemed complete, the city shall mail a public notice to the claimant
and the record owners and occupants of all properties on which the
vegetation at issue in the view restoration claim is located not less
than fourteen calendar days before the public hearing.
(B)
Public Hearing. The view restoration claim shall be heard by the
view restoration committee at a noticed public hearing.
(C)
Site Visit and View Restoration Hearing. Prior to the view restoration claim hearing, each member of the view restoration committee shall make a site visit to view the claimant's obstructed view from the selected view locations or areas and the vegetation at issue. While not required for the view restoration committee to make a site visit to the vegetation owner's property, it is encouraged. At the view restoration committee hearing, the committee shall allow the presentation of both verbal and written evidence and arguments from all parties. The view restoration committee shall then consider and determine whether or not there is significant view impairment of pre-existing views in accordance with the criteria specified in Section 12.16.030. If the view restoration committee determines there is not significant view impairment of pre-existing views, then the view restoration claim shall be deemed denied, and a written notice of that decision shall be prepared and sent to the claimant. If the view restoration committee determines the existence of a significant view impairment, then the committee shall issue a view restoration order for restoration action.
(D)
Findings Required for a View Restoration
Order. The view restoration committee shall issue a view restoration
order to require restoration action regarding vegetation that obstructs
pre-existing views, if the committee makes all of the following findings:
(i)
The claimant has provided evidence of a cooperative attempt
at initial communication and mediation.
(ii)
The vegetation at issue is not exempt from the provisions of this chapter pursuant to Section 12.16.080.
(iii)
There is substantial evidence to support the decision that there is a pre-existing view with significant view impairment according to the criteria specified in Section 12.16.030. In the event that the view restoration committee, by a preponderance of the evidence supplied by either party to the claim, conclude and agree that the pre-existing view was obtained in an illegal manner or conclude and agree that the photographic evidence submitted with the claim had been altered in any manner, the committee may find that the burden of proof has not been met and deny the claim.
(iv)
Alteration, partial removal or complete removal of the vegetation
will not cause an unreasonable infringement of the privacy or other
vegetation benefits of the occupants of the property upon which the
vegetation is located, including without limitation privacy, shade,
erosion control, enhancement of outdoor spaces and community aesthetics.
(v)
Alteration, partial removal or complete removal of the vegetation
will not have a substantial adverse impact on a hillside, drainage
or erosion control.
(vi)
If the recommended restoration action includes complete removal,
all other restoration actions set forth in subsection (c)(3)(E)(i)
through (v) are ineffective in eliminating the significant view impairment.
(vii)
If the recommended restoration action for complete removal is
based on egregious view impairment for which the consent of the vegetation
owner is not required, the committee shall find by clear and convincing
evidence that the view has been diminished over time by the growth
of vegetation and/or by poor maintenance practices and/or by the lack
of consistent maintenance of vegetation and/or by the placement of
vegetation in a view corridor and/or by vegetation out of character
with the landscaping in the neighborhood and, that upon evidence of
proof of prior notification by the claimant to the vegetation owner
and that a significant view impairment exists, there is an objectively
unreasonable failure by the vegetation owner to cooperate to resolve
the view impairment with at least five written notifications from
the claimant to the vegetation owner over at least a three-year period
prior to filing a view claim. It shall be the burden of the claimant
to submit substantial evidence showing that written notification to
the vegetation owner occurred minimally over a three-year period.
(viii)
The recommended restoration action is the minimum
action required to eliminate the significant view impairment.
(E)
"Culling"
"Lacing"
"Trimming"
"Crown reducing"
"Crown raising"
Restoration Action Limitations. If the view restoration committee
is able to make all of the mandatory findings set forth in subsection
(c)(3)(D), then the committee shall determine the restoration action
that must be taken to restore the pre-existing views. Such actions
may include partial removal or complete removal of the vegetation
that is significantly impairing the view from the selected viewing
locations or areas. Partial removal shall mean the use of one or more
of the following methods of reducing vegetation to restore a pre-existing
view:
shall mean the removal of dead, decayed or weak limbs or
vegetation.
shall mean a comprehensive method of pruning that systematically
removes excess vegetation, but maintains its shape.
shall mean the removal of limbs or vegetation. Trimming includes,
but is not limited to, crown reducing and crown raising.
means a comprehensive method of pruning that reduces the
height and/or spread of vegetation. Crown reduction entails the reduction
of the top, sides or individual limbs by means of removal of the leaders
or the longest portion of limbs to a lateral branch large enough to
assume the terminal.
means a comprehensive method of pruning that removes limbs
and vegetation from the lower part in order to raise the canopy over
a view.
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If any tree or shrub that is ordered to be culled, laced or trimmed dies within two years of the initial work being performed and there was no negligence in appropriate vegetation maintenance, the claimant or any subsequent owner of the claimant's property shall be responsible for providing a replacement tree or shrub to the vegetation owner. This time period may be extended by the view restoration committee, if evidence is provided by a certified arborist that a longer monitoring period is necessary for a specific type of tree or shrub. However, if the city arborist determines that culling, lacing or trimming the vegetation will in all probability cause the vegetation to die, and the vegetation owner chooses not to accept Complete removal and replacement as an option, either in writing or in public testimony at the public hearing, then the claimant shall not be responsible for providing a replacement vegetation to the vegetation owner. If the work is performed by the vegetation owner, the vegetation owner shall forfeit the right to replacement vegetation, if the trimmed vegetation dies. If the vegetation dies, it may be subject to the nuisance abatement provisions of Chapter 7.24.
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Except as set forth in the following paragraph, complete removal
of any vegetation shall only be ordered if the owner of the property
on which the vegetation is located consents to such removal of the
vegetation, and the view restoration committee finds:
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(i)
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That upon the advice of the city's arborist, culling, lacing
or trimming the vegetation to an unobstructing view height (six feet
or higher as determined by the view restoration committee) is likely
to kill the vegetation or threaten the health, safety and welfare;
or
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(ii)
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That upon the advice of the city's arborist, culling, lacing
or trimming the vegetation to an unobstructing view height (six feet
or higher as determined by the view restoration committee) will destroy
the aesthetic value of the vegetation that is to be trimmed, laced
or reduce in height.
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Complete removal of any vegetation may be ordered with or without
the consent of the owner of the property on which the vegetation is
located should the view restoration committee find on the basis of
clear and convincing evidence that the view impairment is objectively
egregious.
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(F)
Replacement Vegetation. The view restoration committee may also order
the claimant to replace vegetation that has been removed, if the owner
of the property where the vegetation is located consents to the replacement
of the vegetation and the view restoration committee finds that complete
removal without replacement vegetation will cause significant adverse
impact on:
(i)
The public health, safety and welfare;
(ii)
The privacy of the owner of the property on which the vegetation
is located;
(iii)
Shade provided to the dwelling or the property on which the
vegetation is located;
(iv)
The energy-efficiency of the dwelling on the property on which
the vegetation is located;
(v)
The health or viability of the remaining landscaping on the
property on which the vegetation is located;
(vi)
The integrity of the landscaping of the property on which the
vegetation is located; or
(vii)
The function of the landscaping as screening of an unfinished
wall or structural elements of a deck or other similar structure on
an adjacent property.
The view restoration committee shall ensure that replacement
vegetation is reasonably comparable to the vegetation removed in terms
of function and/or aesthetics while understanding the replacement
vegetation will not be the same height, size and breadth as the pre-existing
mature vegetation. Replacement trees or shrubs should be of a fifteengallon
size and shall not be larger than a twenty-four-inch box size, unless
warranted by the need to reasonably protect privacy or exceptional
circumstances, and the tree or shrub that is being replaced is substantially
larger than a twentyfour-inch box size. The view restoration committee
shall not be obligated to order replacement of every tree or shrub
ordered to be removed with a new tree or shrub. The selection of the
type of replacement vegetation may be made by the vegetation owner,
subject to the approval of the view restoration committee.
In the event that at any time during the view restoration process,
the view restoration committee or staff requires an arborist opinion
in consideration of a view claim and/or adoption of a view restoration
order, a deposit trust account shall be established by the claimant
and held by the city in a deposit trust account to cover the cost
of arborist services.
In the event that the view restoration committee orders replacement
vegetation for a property with a landscape plan approved through the
design review process, the view restoration committee shall condition
maximum height limits for the replacement vegetation in the view restoration
order and the modifications to the approved landscape plan shall not
require re-submittal to and approval by the design review board.
(G)
Conditions. In approving a view restoration order for restoration
action, the view restoration committee may impose such restrictions
or conditions as deemed necessary or proper to restore a pre-existing
view, to protect the vegetation owner's privacy and/or to protect
the public health, safety or welfare.
Unless complete removal is ordered, the view restoration committee
shall require that a long-term vegetation maintenance schedule be
incorporated into the conditions of approval of an approved view restoration
order. The purpose of the maintenance schedule is to mandate the minimum
frequency of future trimming (i.e., semi-annual, annual or biennial)
based on the growth rate of the subject vegetation so as to not to
significantly impair the pre-existing view in the future. Alternatively,
the view restoration committee may specify the amount of allowable
growth as measured with respect to a fixed point of reference that
will not significantly impair the pre-existing view and require that
when this point is reached, the vegetation owner shall be required
to trim the vegetation back to the height established by the committee.
Periodic inspections by the city may occur to ascertain long-term
compliance with the view restoration order conditions of approval
for restoration action.
Claimant shall select an ISA certified tree trimmer or accredited
arborist to perform the restoration action and subsequent maintenance
unless the vegetation owner prefers to select the ISA certified tree
trimmer or accredited arborist. If the vegetation owner selects the
arborist, the vegetation owner shall pay the claimant the difference
between the fee charged by the claimant's arborist and the vegetation
owner's arborist unless a different allocation of cost is required
by this chapter or by mutual agreement of the parties. The view restoration
committee shall also require that the claimant submit one to three
itemized estimates to the city for carrying out work required by an
approved view restoration order. The work estimate shall include tree
or shrub trimming/removal and replacement costs. Said estimate shall
be submitted within thirty days after the adoption of the view restoration
order and shall include the cost to have an ISA certified tree trimmer
or accredited arborist on site to perform or supervise the work being
done. Said estimates are to be supplied by licensed landscape or licensed
tree contractors, acceptable to the city, which provide insurance
in an amount and form acceptable to the city, and shall include all
costs of cleanup and removal of debris. Said insurance shall identify
the vegetation owner and the city (and its officers, agents and employees)
as additionally named insured. The claimant shall pay to the city
an amount equal to the lowest of the estimates, and such funds shall
be maintained by the city, in a city deposit trust account until completion
of the work as verified by city staff.
(H)
Compliance Time Limit. The city shall require that the vegetation
owner trim or remove vegetation within ninety days from a date specified
in the view restoration order. The view restoration order shall be
sent to the vegetation owner by the city once a deposit trust account
has been established by the claimant for the cost of the trimming/removal
and vegetation replacement. Once the vegetation trimming/removal and
any required replacement work is performed to the satisfaction of
city staff site inspection, so that compliance with the view restoration
order has been achieved, including any conditions of approval, then
the city shall pay the vegetation owner the cost of said work.
If evidence is provided to the city or the view restoration
committee that it is less harmful to trim certain vegetation during
the vegetation's dormant period, then the city or the view restoration
committee may require that the subject vegetation be trimmed within
ninety days from a specified future date.
If evidence is provided to the city or the view restoration
committee that the vegetation, subject to trimming or removal, contains
nests (or eggs) of birds that are designated under the Migratory Bird
Treaty Act and California Department of Fish and Game Code, the city
staff or the view restoration committee may require that the subject
vegetation be trimmed within ninety days following a determination
by a qualified biologist or ornithologist that the nest is inactive.
(I)
Enforcement. If the restoration action required by a view restoration order is not satisfactorily completed, as verified by city staff, within the specified time period, then the city may utilize its code enforcement and/or nuisance abatement process to authorize a bonded tree service to perform the work at the subject property at the vegetation owner's expense, and the claimant's deposit shall be refunded. In the event that the city is required to perform the work, the vegetation owner will be billed for all city expenses incurred in enforcing the view restoration order. If the vegetation owner fails to pay the invoice, a lien or assessment may be recorded against the vegetation owner's property pursuant to Section 7.24.130.
(4)
Effective Date. Any decision of the view restoration committee made
pursuant to this section takes effect fourteen calendar days following
the adoption of a resolution unless an appeal is filed pursuant to
subsection (B)(5).
(5)
Appeal. Any decision of the view restoration committee may be appealed
by the claimant or the vegetation owner to the city council. Appeals
shall be addressed to the city council on a form prescribed by the
city and shall state all grounds for the appeal. Any appeal must be
filed with the city clerk within fourteen calendar days of the view
restoration committee's decision regarding a view restoration claim.
Appeals shall be accompanied by the filing fee as adopted by resolution
of the city council, and shall be processed and noticed in the same
manner as the original view restoration claim. The city manager shall
set the date for an appeal public hearing before the city council
and shall not be limited by the time period specified in Section 25.05.070(B)(6).
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
(a)
The cost of the mediator shall be borne by the claimant, unless the
parties involved expressly agree otherwise in writing.
(b)
The claimant shall generally be responsible for paying the cost of
any required initial restoration action, unless the parties involved
expressly agree otherwise in writing; provided, however, the view
restoration committee is authorized to apportion such cost between
the claimant and the vegetation owner in the interest of fairness
and equity, taking into account the totality of the circumstances,
including without limitation the nature and extent of the initial
restoration action, the conduct of the parties, and the economic resources
of the parties.
(c)
The vegetation owner shall be responsible for paying the cost of
any required subsequent maintenance on the subject vegetation, unless
the parties involved expressly agree otherwise in writing.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
(a)
The city shall not be liable for any damages, injuries, costs or
expenses that are the result of any action, determination or decision
of a city body, employee or official or any agreements or determinations
resulting from mediation or litigation concerning a view preservation
claim or a view restoration claim or a claimant's or vegetation owner's
assertions pursuant to this chapter.
(b)
This chapter is not intended to and shall not be construed as creating
a mandatory duty of the city to enforce or seek any legal redress,
civil, criminal or otherwise, with regard to any action, determination
or decision pursuant to this chapter concerning a view preservation
claim or a view restoration claim.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
The following types of vegetation are exempt from the provision
of this chapter:
(a)
Vegetation that does not significantly impair a view.
(b)
Vegetation that is less than six feet in height or situated more
than five hundred feet from the boundary of a claimant's property.
(c)
City-maintained vegetation that is designated for maintenance by
the city. Such vegetation includes vegetation in city parks, on city
properties and designated city maintained street trees within rights-of-way.
(d)
Heritage trees that are on the official heritage tree list established by the city council pursuant to Chapter 12.08.
(e)
Vegetation that was approved through the design review process and in which vegetation height limits were established pursuant to Section 25.05.040.
(g)
Vegetation that was approved by a view claim processed pursuant to Chapter 12.16 prior to December 17, 2014 (the effective date of the ordinance codified in this chapter).
(h)
Vegetation subject to a private agreement as part of a settlement
agreement in resolution of a legal action commenced in a court of
competent jurisdiction.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
If at any point in the implementation or enforcement of the
provisions of this chapter, the vegetation property owner either verbally
or in writing prohibits or restricts property access, the city attorney
is authorized to seek the necessary appropriate inspection or abatement
warrant, injunction or other judicially granted authority that is
necessary to enter onto private property for inspection or abatement.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
Decisions made by city staff and the view restoration committee regarding view restoration and view preservation run with the land and shall be binding on the claimant and the vegetation owner and their heirs, successors and assigns. Such decisions, to the extent permitted, shall be recorded in the official records of the county of Orange. In addition, such decisions shall be set forth in any real property report required by Chapter 14.76 and should be disclosed by each owner to prospective purchasers of their properties.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
(a)
Failure to comply with the terms and conditions of a view restoration order or view preservation requirements shall constitute a violation punishable in accordance with Chapter 1.15, and is subject to the administrative penalty provisions of that chapter. Each day that a violation continues shall constitute a separate offense.
(b)
To the extent any vegetation violates the terms and conditions of a view restoration order or view preservation requirements, the violation shall constitute a public nuisance and shall be subject to the provisions of Chapter 7.24.
(c)
Nothing in this chapter shall be construed as preventing an interested
party from commencing a civil action against a vegetation owner to
enforce the terms of a view restoration order or view preservation
requirements.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
Before accepting for filing any request or application submitted relative to Chapter 12.16 of this code, the department of community development shall charge and collect a filing fee for each such request or application as determined by resolution of the city council.
(Ord. 1592 § 1, 2014; Ord. 1618 § 1, 2016)
