This chapter shall be known as the "Malibu Country Estates View
Restoration and Preservation Ordinance."
(Ord. 317 § 2, 2007)
The purpose of this chapter is to establish a right for property
owners and legal occupants to restore and preserve a primary view,
as defined within this chapter. This chapter is not intended to affect,
and shall not be construed as affecting, obligations imposed by restrictive
covenants or other agreements.
(Ord. 317 § 2, 2007)
The following definitions shall apply for purposes of this chapter:
means arbitration proceedings in accordance with California
Code of Civil Procedure Section 1280 et seq.
means a person who conducts arbitration proceedings in accordance
with California Code of Civil Procedure Section 1280 et seq.
means a property owner or legal occupant who alleges that
one or more trees located on the property of another person are causing
an obstruction of a primary view.
means a neutral third person that assists the complainant
and a tree owner in finding a mutually satisfactory solution to a
tree dispute.
means visually impressive scenes of the Pacific Ocean, offshore
islands, the Santa Monica Mountains, canyons, valleys, or ravines
as viewed from the primary view area. "Primary view" does not include
a view of the sky, yards or structure interiors on neighboring properties,
or vacant land that is developable under the zoning ordinance or the
Local Coastal Program.
means that portion of a residence within the Malibu Country
Estates subdivision (excluding bathrooms, closets, garages and hallways)
from which the primary view is observed. A property shall have only
one primary view area. The primary view area shall be determined by
the planning manager or his/her designee in consultation with the
property owner. The primary view area determination shall be made
by balancing the nature of the view to be restored and the importance
of the area within the structure from where the view is taken. The
primary view area shall be assessed from a single fixed location and
direction in the structure, at an elevation of five feet as measured
from the room floor or on an abutting outdoor deck or patio at any
one point within 10 feet of the nearest outside wall of the building
as selected by the complainant and the planning manager. In the event
the property owner and the planning manager (or designee) cannot agree
on the primary view area, the decision of the planning manager shall
control. Once a primary view area is finally determined for purposes
of this chapter or for any other purpose pursuant to this code or
the Local Coastal Program, it may not be changed. The primary view
area determination is final and not appealable.
means the elimination of a tree from its present location.
means conduct undertaken to eliminate an obstruction of a
primary view.
means new growth from the remaining portion of a tree trunk,
the main portion of which has been cut off.
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.
means the elimination of the upper portion of a tree's trunk
or main leader.
means a woody plant with the potential to obstruct primary
views. "Tree" includes without limitation shrubs, hedges and bushes.
means a person owning property containing one or more trees
that a complainant alleges are causing an obstruction of a primary
view.
means the selective removal of portions of branches from
a tree so as to modify the tree's shape or alter its appearance.
(Ord. 317 § 2, 2007)
Owners and legal occupants of property in the Malibu Country
Estates shall have right to a primary view as defined within this
chapter, unimpeded by trees within the Malibu Country Estates subdivision.
To vindicate this right, a complainant must follow the process prescribed
by this chapter.
(Ord. 317 § 2, 2007)
No person shall plant, maintain or permit to grow any tree that
causes an obstruction of the primary view from the primary view area
of any property within the Malibu Country Estates.
(Ord. 317 § 2, 2007)
The following nonexclusive criteria shall be considered in determining
whether an obstruction has occurred.
A.
The
extent of obstruction of a primary view from the primary view area
of the complainant's property, both currently and at tree maturity.
B.
The
quality of the primary view being obstructed, including without limitation
obstruction of landmarks, vistas or other unique features.
C.
The
extent to which the complainant's primary view has been diminished
over time by factors other than tree growth.
(Ord. 317 § 2, 2007)
B.
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 native
species shall be considered.
(Ord. 317 § 2, 2007)
Each type of restorative action shall be evaluated based on
the above restorative action criteria and with consideration of the
following factors:
A.
The
effectiveness of the restorative action in restoring the primary view;
B.
Any
adverse impact of the restorative action on the benefits derived from
the growth in question;
C.
The
cost of the restorative action.
(Ord. 317 § 2, 2007)
Restorative actions shall be undertaken with consideration given
to the following factors:
A.
All
restorative action should consider the restorative action evaluation,
above.
B.
Restorative
actions shall include shaping, thinning, and/or heading of branches
where possible and, as a last resort, removal.
C.
When
shaping and/or thinning of branches is not a feasible solution, heading
or topping shall be preferable to tree removal.
D.
Tree
removal shall only be considered when all other restorative actions
are judged to be ineffective in restoring the primary view while preserving
the health of the tree. Replacement planting can be required on the
property of either parties or both.
E.
In
those cases, where tree removal eliminates or significantly reduces
the tree owner's benefits of visual screening, windscreening or privacy,
replacement screen plantings shall, at the tree owner's option, be
established prior to tree removal; notwithstanding the provisions
of the restorative action evaluation above, the tree owner may elect
tree removal with replacement planting as an alternative to shaping,
thinning, heading or topping.
F.
All
shaping, thinning, heading, topping and tree removal of native oak,
walnut, sycamore, alder or toyon tree required within the Local Coastal
Program and under this chapter must be performed under the daily supervision
of an arborist.
(Ord. 317 § 2, 2007)
The following guidelines shall apply to the imposition of restorative
action:
A.
A tree
permit must be obtained for the removal of a native oak, walnut, sycamore,
alder or toyon tree as required by the Local Coastal Program (Chapter
5). Every attempt should be made to preserve these trees. Their removal
shall be prohibited except where no other feasible alternative exists.
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 a minor obstruction has occurred, provided that ongoing maintenance
is guaranteed.
D.
When
trimming of native oak, walnut, sycamore, alder or toyon trees will
not resolve an obstruction, thinning or windowing may be necessary.
These shall be supervised by a certified arborist.
E.
Tree
removal may be required where such removal is essential to preserve
a primary view. While normally considered a drastic measure, tree
removal may be the preferred solution in some circumstances.
F.
Once
restorative action has been undertaken, it is incumbent upon the tree
owner to continually maintain the trees in a manner that preserves
the complainant's restored primary view.
G.
Conditions
of restorative action may be recorded and run with the land to guarantee
permanent preservation of a view from the designated primary view
area of the complainant's residence.
H.
Once
restorative action is completed, the planning manager shall be notified
and a photograph shall be submitted to the manager which shall memorialize
the restored primary view.
(Ord. 317 § 2, 2007)
A complainant who believes that tree growth on the property
of another has caused an obstruction of their primary view shall notify
the tree owner in writing of such concerns. The notification should,
if possible, be accompanied by personal discussions to enable the
complainant and the tree owner to attempt to reach a mutually satisfactory
solution.
(Ord. 317 § 2, 2007)
A.
If
informal negotiation fails, the complainant 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;
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 complainant to eliminate the alleged obstruction.
C.
The
tree owner shall have 30 days from service of the offer to accept
or reject mediation. If the tree owner does not respond to the offer
within 30 days of its receipt, the offer may be considered rejected.
If accepted, the parties shall agree on a mediator within 21 days
and shall indicate such agreement in writing.
D.
The
mediation meeting may be informal. The mediation process may include
the hearing of view-points of lay or expert witnesses, and shall include
a site visit to the properties of the complainant 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. 317 § 2, 2007)
A.
If
informal negotiation has failed, and if mediation has been declined
or also has failed, the complainant must provide the tree owner a
written offer to submit the tree dispute to arbitration.
B.
The
tree owner shall have 30 consecutive calendar days from service of
the offer to accept or reject binding arbitration. If the tree owner
does not respond to the offer within 30 days of its receipt, the offer
may be considered rejected. If accepted, the parties shall agree on
an arbitrator within 21 days and shall indicate such agreement in
writing: if the parties fail to so agree, then the complainant shall
deliver a list of three arbitrators to the tree owner who shall have
10 days from receipt of such list to choose one arbitrator from the
list and if the tree owner fails to timely do so, the complainant
may choose an arbitrator from the list.
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 complainant 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 binding and enforceable pursuant
to the provisions of California Code of Civil Procedure Section 1280
et seq.
(Ord. 317 § 2, 2007)
If binding arbitration is declined by the tree owner, then the
complainant may initiate court action to resolve the tree dispute
under this chapter. The complainant 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. 317 § 2, 2007)
A.
The
complainant and the tree owner shall each pay 50% 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.
All
restorative action costs shall be borne 50% by the complainant and
50% by the tree owner in the first instance. All restorative action
must be performed by a licensed and bonded tree service unless mutually
agreed otherwise by the affected property owners.
D.
After
the restorative action is completed, all costs of continuing maintenance
of tree growth necessary to maintain the restored primary view shall
be borne by the tree owner.
(Ord. 317 § 2, 2007)
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. 317 § 2, 2007)
Trees and all other forms of landscaping located on city property
are exempt from this chapter.
(Ord. 317 § 2, 2007)
