HomeMy WebLinkAboutOrdinance No. 0953
Ordinance No. 953 1 of 15
Ordinance No. 953
MEDINA CITY COUNCIL
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF MEDINA, WASHINGTON, TO REPEAL CHAPTER 18.16 OF
THE MEDINA MUNICIPAL CODE (TREES – VIEW AND SUNLIGHT OBSTRUCTION);
AND TO ADOPT A NEW CHAPTER 8.08 OF THE MEDINA MUNICIPAL CODE
PERTAINING TO VIEW AND SUNLIGHT OBSTRUCTION BY TREES AND OTHER FOLIAGE
WHEREAS, pursuant to the Growth Management Act (GMA), chapter 36.70A RCW, the
City Council has adopted the City of Medina Comprehensive Plan, which provides a vision of
Medina residents, and supporting goals and policies, for maintaining and preserving the high-
quality residential setting character of the community; and
WHEREAS, the Community Design Element (Chapter 3) of the Medina Comprehensive
Plan sets forth the quality of Medina’s neighborhood development as distinct and enhanced by a
combination of natural and built features including proximity of the lake shore, views, narrow
streets with extensive mature landscaping, and large tracts of public and private open space
which can be seen from residential lots and City streets; and
WHEREAS, the Medina Comprehensive Plan states that “it is important that citizens be
sensitive to the impact that altering or placing trees may have on neighboring properties; and that
trees can disrupt existing and potential views and access to sun;” and
WHEREAS, the Medina Comprehensive Plan sets forth in Policy CD-P4 for residents to
consult with the City and their neighbors on both removal and replacement of trees and tree
groupings to help to protect views and to prevent potential problems; and
WHEREAS, the City Council adopted Ordinance No. 575 on March 13, 1995, establishing
the right to preserve and seek restoration of views or sunlight, which existed at any time since
purchase or occupancy of a property, when such views or sunlight are from a primary living or
entertainment area and have subsequently been unreasonably obstructed by the growth of trees,
and establishing a process for private property owners to resolve disputes; and
WHEREAS, Ordinance No. 575 was repealed by Ordinance No. 801 on March 26, 2007,
and the City Council adopted Ordinance No. 816 on October 8, 2007, re-establishing rights to
view and sunlight and a process for private property owners to resolve disputes involving views
and access to sunlight obstructed by trees; and
WHEREAS, Ordinances No. 575 and No. 816 provided if attempts to resolve view and
sunlight obstruction disputes outside of court failed, an aggrieved property owner could initiate a
civil action in a court of competent jurisdiction to settle the dispute; and
WHEREAS, during the 2014 Phase Two amendments to the Medina Tree Code, Chapter
20.52 MMC, public testimony was presented to the City Council regarding complaints about the
growth of trees causing view obstructions; and
Ordinance No. 953 2 of 15
WHEREAS, the City Council discussed view and sunlight obstructions at their December
8, 2014, regular meeting and tabled the discussion, due to differing public interests the tree code
and the view and sunlight obstruction code seek to achieve, until after completion of the second
phase of amendments to the Medina Tree Code; and
WHEREAS, after completing the second phase of amendments to the Medina Tree Code,
the City Council discussed view and sunlight obstructions at their April 11, 2016, regular meeting
and indicated support for developing a local process for resolving disputes involving trees and
other foliage blocking views and access to sunlight; and
WHEREAS, at the April 11, 2016, regular meeting, the City Council voted to add amending
the view and sunlight obstruction regulations to the Planning Commission Work Program; and
WHEREAS, RCW 35A.63.170 grants the City Council the power to adopt a hearing
examiner system to conduct quasi-judicial hearings in land use matters; and
WHEREAS, the City Council adopted Ordinance No. 701, and last amended by Ordinance
No. 935, establishing a hearing examiner system under Chapter 2.78 of the Medina Municipal
Code, which provides the hearing examiner with powers and duties consistent with RCW
35A.63.170; and
WHEREAS, the City wishes to establish a local process using the hearing examiner to
decide disputes involving view and sunlight obstructed from foliage from trees and other
vegetation; and
WHEREAS, in accordance with RCW 36.70A.106, a notice of intent to adopt amendment
was transmitted to the Washington State Department of Commerce on September 1, 2017
(Material ID # 24087); and
WHEREAS, a State Environmental Policy Act (SEPA) threshold Determination of
Nonsignificance (DNS) for proposed code amendments was issued on September 6, 2017,
pursuant to WAC 197-11-340(1); and
WHEREAS, the Planning Commission held a public hearing on September 26, 2017, to
receive testimony regarding proposed code amendments to the MMC; and
WHEREAS, notice of the Planning Commission’s public hearing was published in The
Seattle Times on September 6, 2017, in accordance with the content set forth in MMC 20.83.120,
and posted to the City’s notice boards and website on September 6, 2017; and
WHEREAS, the City Council received the Planning Commission’s recommendation at
their November 13, 2017, regular meeting and scheduled a public hearing for December 11, 2017,
for which notice was posted on the City’s notice boards and website on November 29, 2017; and
WHEREAS, the City Council held a public hearing on December 11, 2017, to receive
testimony for and against the proposal and following the hearing deliberated on the proposal.
Ordinance No. 953 3 of 15
WHEREAS, the City Council makes the following findings of fact in support of its decision:
A. The proposal is consistent with the Medina Comprehensive Plan. The comprehensive
plan identifies the importance of trees and vegetation helping to reduce the impacts of
development by providing significant aesthetic and environmental benefits. The
comprehensive plan also recognizes the importance of access to views and sunlight.
These elements contribute to the community’s distinctive and informal neighborhood
development pattern. The community is graced by premium single-family residential
development with proximity to lake shores, views and extensive mature landscaping.
These contribute to the high-quality residential setting and character. The
comprehensive plan further states that citizens need to be sensitive to the impact of
trees as they can disrupt existing and potential views and access to sun. The proposal
establishes standards and provides a local mechanism for resolving disputes.
B. The City Council has authority under RCW 35A.63.170 to designate the hearing
examiner as the decisionmaker for unreasonable obstruction complaints. The proposal
is a development regulation pursuant to RCW 36.70A.030(7) as the regulations
establish standards that control land use activities involving trees and other foliage.
C. Foliage, views, and access to sunlight and the benefits derived from each of these
may come into conflict. The proposal provides a local mechanism for resolving these
conflicts that uses the least invasive remedies and allocates the full cost of remedies
and process to the owner of the view. The proposal does not impede a property
owner’s right to seek redress using other lawful means.
D. The City provided appropriate opportunity for the public to participate in the planning
process. The Planning Commission held nine public meetings and a public hearing to
develop their recommendation. The City Council, after receiving the Planning
Commission’s recommendation, held a public hearing to receive public comments on
the proposal. Public noticing was made to notify and solicit input from the public
including posted notices on the City’s notice boards, sending electronic notices to
interested parties, and mailing a postcard notice to the entire community notifying them
of the Planning Commission’s public hearing.
E. The proposal bears a substantial relation to the public health, safety and welfare. It
establishes standards for the resolution of view and sunlight obstruction claims where
a property owner can show such view or access to sunlight existed at any time af ter
taking ownership of said real property, and establishes a structure for resolution of
such claims, which will provide a reasonable balance between the values of foliage
and view and sunlight related values.
F. A SEPA threshold Determination of Nonsignificance was issued September 6, 2017.
and;
WHEREAS, given the findings of fact set forth immediately above, the criteria for
amendment of the text of the City’s development regulations set forth in MMC Section 20.81.080
are satisfied.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MEDINA, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Ordinance No. 953 4 of 15
Section 1. Repeal Chapter 18.16 MMC. Chapter 18.16 of the Medina Municipal Code
is hereby repealed.
Section 2. Adopt Chapter 8.08 MMC. Chapter 8.08 of the Medina Municipal Code is
hereby adopted as set forth in Attachment A.
Section 3. Amend MMC 20.50.040. Section 20.50.040 of the Medina Municipal Code is
amended to read as follows:
…
4. Select Vegetation Removal Activities. The following limited vegetation removal activities are
allowed in critical areas and buffers. Otherwise, removal of any vegetation or woody debris
from a critical area shall be prohibited unless the action is part of an approved alteration.
a. The removal of the following vegetation with hand labor and/or light equipment; provided,
that the appropriate erosion-control measures are used and the area is replanted with
native vegetation:
i. Invasive weeds;
ii. Himalayan blackberry (Rubus discolor, R. procerus);
iii. Evergreen blackberry (R. laciniatus);
iv. Ivy (Hedera spp.); and
v. Holly (Ilex spp.), laurel, Japanese knotweed (Polygonum cuspidatum), or any other
species on the King County Noxious Weed List.
b. The cutting and removal of trees that are hazardous, posing a threat to public safety, or
posing an imminent risk of damage to private property, from critical areas and buffers;
provided, that:
i. The applicant submits a report from a qualified professional (e.g., certified arborist or
professional forester) that documents the hazard as specified in Chapter 20.52 MMC
and provides a replanting schedule for replacement trees;
ii. Tree cutting shall be limited to limb and crown thinning, unless otherwise justified by a
qualified professional. Where limb or crown thinning is not sufficient to address the
hazard, trees should be topped to remove the hazard rather than cut at or near the
base of the tree;
iii. All native vegetation cut (tree stems, branches, tops, etc.) shall be left within the critical
area or buffer unless removal is warranted due to the potential for disease transmittal
to other healthy vegetation or the remaining material would threaten the survival of
existing native vegetation. However, no cut material shall be left on a steep slope or
landslide hazard area without the approval of a qualified professional;
iv. Trees shall be cut to leave standing snags when doing so allows the hazard of the tree
to be eliminated;
v. The landowner shall replace any native trees that are felled or topped with new trees
at ratios specified in Chapter 20.52 MMC within one year in accordance with an
approved restoration plan prepared by a qualified professional. Tree species that are
native and indigenous to the site shall be used;
vi. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified
wildlife biologist shall be consulted to determine timing and methods for removal that
will minimize impacts; and
vii. Hazard trees determined to pose an imminent threat or danger to public health or
safety, or to public or private property, or serious environmental degradation may be
removed or topped by the landowner prior to receiving written approval from city;
provided, that within 14 days following such action, the landowner shall submit a
restoration plan that demonstrates compliance with the provisions of this title.
Ordinance No. 953 5 of 15
c. Trimming of vegetation for purposes of providing view corridors will be allowed; provided:
i. It is consistent with Chapters ((18.16))8.08 and 20.52 MMC and that trimming shall be
limited to view corridors of 20 feet in width or less;
ii. The limbs involved do not exceed three inches in diameter;
iii. Not more than 25 percent of the live crown is removed;
iv. Benefits to fish and wildlife habitat are not reduced;
v. Trimming is limited to hand pruning of branches and vegetation; and
vi. Trimming does not include felling, topping, stripping, excessive pruning or removal of
trees.
d. Measures to control a fire or halt the spread of disease or damaging insects consistent
with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed
vegetation shall be replaced in-kind or with similar native species within one year in
accordance with an approved restoration plan prepared by a qualified professional; and
…
Section 4. Amend MMC 20.52.400. Section 20.52.400 of the Medina Municipal Code is
amended to read as follows:
…
D. Removal of a city tree located within an open or closed city right-of-way may be allowed for
the following:
1. Hazard trees designated pursuant to MMC 20.52.200;
2. Nuisance trees designated pursuant to MMC 20.52.210;
3. Trees not suitable under utility lines, or in the city right-of-way, as prescribed in the “City
of Medina List of Suitable Tree Species”;
4. Any tree having less than a 10-inch diameter breast height size; and any trees not included
on the “City of Medina Suitable Tree Species List” for the right-of-way having less than a
36-inch diameter breast height size;
5. Trees where pruning and trimming for utilities caused significant defects to the primary
stem of the tree resulting in significant abnormal growth;
6. Trees where removal is necessary to allow vehicle access to a property;
7. ((Trees where removal is necessary to restore a view significantly obstructed by the tree
provided of the following criteria are satisfied:
a. The owner of the adjoining property to the subject tree accept allowance to have the
tree removed));
b. The person claiming the view obstruction establishes the tree causes an unreasonable
view obstruction using the provisions established in MMC 18.16.040 through
18.16.080; and
c. The approval of a nonadministrative right-of-way activity permit is obtained pursuant to
MMC 20.72.090.))
Trees where removal is necessary to preserve or restore a view unreasonably obstructed
by the tree provided the following criteria are satisfied:
a. The owner of the adjoining property to the subject tree agrees to the tree’s removal
and the director finds the removal of the tree is consistent with the comprehensive plan
and tree management goals; and
b. The tree is not a legacy tree pursuant to MMC 20.52.120; and
c. Approval of an administrative right-of-way tree activity permit must be obtained
pursuant to MMC 20.71.050. During consideration of the permit, the director must find
the applicant had a right to a view pursuant to MMC 8.08.050.
Ordinance No. 953 6 of 15
d. The mailed notice set forth in MMC 20.80.110(C) and MMC 20.80.140(B)(2) shall be
sent to the addresses of all properties located within 600 feet.
e. During the public comment period for the notice of application, if the City receives a
written objection to the removal of the tree, approval of a non-administrative right-of-
way tree activity permit must be obtained pursuant to the requirements in MMC
20.72.090. During consideration of the permit, the hearing examiner must find an
unreasonable view obstruction as defined in MMC 8.08.070 exists.
…
Section 5. Severability. Should any section, paragraph, sentence, clause or phrase of this
ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise
invalid for any reason, or should any portion of this ordinance be pre-empted by state or federal law
or regulation, such decision or pre-emption shall not affect the validity of the remaining portions of
this ordinance or its application to other persons or circumstances.
Section 6. Effective Date. A summary of this ordinance shall be published in the official
newspaper of the City, and the ordinance shall take effect and be in full force five (5) days after the
date of publication.
ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF ON THE 11th DAY OF
DECEMBER 2017.
ATTACHMENT A
Ordinance No. 953 7 of 15
Chapter 8.08
VIEW AND SUNLIGHT OBSTRUCTIONS
8.08.010 Introduction.
8.08.020 Findings.
8.08.030 Purpose.
8.08.040 Definitions
8.08.050 Rights established.
8.08.060 Not eligible under this chapter.
8.08.070 Unreasonable obstruction.
8.08.100 Process for resolving view and access to sunlight disputes.
8.08.110 Neighbor reconciliation.
8.08.120 Unreasonable obstruction complaint.
8.08.130 Unreasonable obstruction complaint hearing.
8.08.140 Hearing examiner’s determination.
8.08.150 Unreasonable obstruction – evaluation criteria.
8.08.160 Unreasonable obstruction – limitations on restorative action.
8.08.170 Compliance with city codes required.
8.08.180 Effect of a determination of an unreasonable obstruction.
8.08.190 Allocation of costs.
8.08.200 Enforcement
8.08.210 Limitation on application.
8.08.220 No duty to abate.
8.08.010 Introduction
This chapter provides a local administrative process for the resolution of disputes involving
preserving views and access to sunlight between Medina neighbors. When a view or access to
sunlight dispute arises, it is suggested that the parties first make good faith efforts to resolve the
dispute through friendly communications, thoughtful negotiations, compromises, view easements,
and other traditional means.
8.08.020 Findings.
This chapter is enacted in recognition of the following findings:
A. Views and access to sunlight are important to properties inside Medina’s boundaries. The
Medina Comprehensive Plan identifies the importance of access to views and sunlight, as
well as the importance of trees and extensive landscaping to the community’s distinctive and
informal neighborhood development pattern.
B. Views produce a variety of significant and tangible benefits such as:
1. Contributing to the economic environment by substantially enhancing real property values;
and
2. Contributing to the visual environment by providing inspiring panoramic vistas.
C. Access to plentiful sunlight enhances livability and promotes the general welfare of the
community; and
D. Trees, extensive vegetation, views and access to sunlight, and the benefits derived from these
may come into conflict when unmanaged trees and vegetation interfere with the enjoyment of
views and access to sunlight, potentially impacting property values.
E. With appropriate safeguards requiring consideration of all the factors set forth herein, affected
property owners requesting view or sunlight access improvement can be given substantial
ATTACHMENT A
Ordinance No. 953 8 of 15
relief without infringing upon the rights of the owners of properties containing trees and
vegetation.
F. It is in the interest of the public health, welfare, peace and safety to establish criteria and
procedures for resolving disputes involving obstructions of views and access to sunlight.
8.08.030 Purpose.
The purpose of this chapter is to:
A. Provide a localized process for resolving disputes where trees, vegetation, views and sunlight
may come into conflict with each other;
B. Promote the public health, welfare, peace and safety;
C. Preserve and promote the significant tangible benefits provided by views; and
D. Preserve and promote the significant tangible benefits provided by access to sunlight.
E. Balance the rights of residential property owners with foliage against the rights of residential
property owners to continue enjoying views or access to sunlight that they have enjoyed
during their property ownership.
8.08.040 Definitions.
A. General provisions.
1. Words used in the singular shall include the plural, and the plural shall include the singular,
unless the context clearly indicates the contrary.
2. Terms not defined herein shall take their meaning from definitions in the Medina
Comprehensive Plan or in the Unified Development Code (Title 20 MMC). If a specific
term is not defined or referenced, it shall take its normal and customary meaning within
the context of how it is used.
B. Definitions.
1. “City” means City of Medina.
2. “Complainant” means an owner of real property in the city of Medina who alleges that
foliage from the property of another person are causing unreasonable obstruction of their
pre-existing views or access to sunlight.
3. “Director” means the city manager or designee appointed by the city manager to
administer this chapter.
4. “Foliage” means a cluster of leaves, flowers and/ or branches from any organism of the
plant kingdom, including trees, bushes, and shrubs.
5. “Hearing Examiner” means the person appointed pursuant to MMC 2.78.020 with the
powers and duties prescribed in Chapter 2.78 MMC.
6. “Owner, real property” means a person who has legal or equitable title to real property, or
his or her agent or representative.
7. “Primary living or entertaining area” means an area from which a view is observed most
often by occupants relative to other portions of the residence, which may include both
interior and exterior spaces. The determination of primary living or entertaining area is to
be made on a case-by-case basis, but excludes such spaces as hallways, garages,
closets, laundry rooms, and other spaces not typically used for primary living or
entertainment.
8. “Respondent” means any person owning real property in the City of Medina upon whose
land is located foliage alleged by a complainant to cause an unreasonable obstruction to
a view and/or access to sunlight.
9. “Restorative action” means any specific requirements to resolve a view and sunlight
obstruction dispute.
ATTACHMENT A
Ordinance No. 953 9 of 15
10. “Right-of-way” means a public or private area that allows for the passage of people or
goods. Right-of-way includes passageways such as freeways, streets, bike paths, alleys,
and walkways. A public right-of-way is a right-of-way that is dedicated or deeded to the
public for public use and under the control of a public agency.
11. “Right-of-way Trees” means a tree with at least two-thirds of its trunk diameter on public
right-of-way.
12. “Substantial deprivation of sunlight” means the loss of a substantial portion of direct or
indirect sunlight in a primary living or entertaining area or in a significant portion of the
complainant’s real property.
13. “Tree” means a self-supporting woody perennial plant, excluding a bush or shrub.
14. “View” means an actual or potential vista observable from within a primary living or
entertaining area of a residence or lot which has a significant horizontal expanse and
which includes, but is not limited to a vista of Lake Washington, the opposite shore of Lake
Washington, Mercer Island, a bridge, the Olympic or Cascade Mountains, Mount Rainier,
the golf course or the skylines of Seattle or Bellevue.
8.08.050 Rights established.
A. Owners of real property shall have a right to seek to preserve and/ or restore views or access
to sunlight on their property when a view or access to sunlight:
1. Existed at any time after taking ownership of said real property; and
2. Has been unreasonably obstructed by foliage from the growth of trees or vegetation by
neighboring properties after ownership of said real property; and
3. The obstruction is experienced from a primary living or entertainment area.
B. To establish such rights under this chapter, the owner of real property must follow the
process established in this chapter.
C. Nothing in this chapter shall entitle a property owner to have an entirely unobstructed view or
access to sunlight.
D. Nothing in this chapter shall prevent a property owner from seeking redress from a view or
access to sunlight obstruction using other lawful available means.
8.08.060 Not eligible under this chapter.
The following are not eligible under this chapter:
A. Creation of a new view or enhancing a view or access to sunlight that was not at one time
enjoyed by the owner of real property after taking ownership of said property; or
B. Obstruction of views or access to sunlight involving trees in public rights-of-way, or foliage on
city-owned property such as city parks.
Owners of real property seeking redress of obstructed views or access to sunlight by trees in a
public right-of-way shall follow the provisions in Chapter 20.52 MMC.
8.08.070 Unreasonable obstruction.
Unreasonable obstruction is the obstruction of view or sunlight, or both caused by the uncontrolled
growth of foliage, which is determined to exist applying the evaluation criteria set forth in MMC
8.08.150 and which may be eligible for redress as provided for in this chapter.
ATTACHMENT A
Ordinance No. 953 10 of 15
8.08.100 Process for resolving view and access to sunlight disputes.
When a complainant raises a view or access to sunlight obstruction claim and good faith efforts
fail to resolve the dispute, the process outlined below shall be used in determining if an
unreasonable obstruction exists:
A. The complainant shall seek to resolve the dispute using the process of neighbor reconciliation
set forth in MMC 8.08.110;
B. If the process of neighbor reconciliation fails to resolve the dispute, an unreasonable
obstruction complaint may be filed pursuant to MMC 8.08.120 and the hearing examiner shall
decide the dispute.
C. Parties are encouraged to use the Seattle King County Alternative Dispute Resolution Center
for mediation, or may submit their dispute to binding arbitration, but these are not required.
8.08.110 Neighbor reconciliation.
A. A complainant who believes they have cause for an unreasonable obstruction of views or
access to sunlight claim under the rights established in MMC 8.08.050, prior to seeking any
further relief afforded under this chapter, shall provide written notification of such concerns to
the respondent.
B. The notification shall propose specific restorative actions, such as tree trimming, and offer to
pay the costs associated with such actions.
C. If the complainant and respondent cannot reach a mutually agreeable solution, or if the
respondent fails to reply to the complainant’s notice within 45 days of delivery, the complainant
may file an unreasonable obstruction complaint pursuant to MMC 8.08.120.
8.08.120 Unreasonable obstruction complaint.
A. A complainant may file an unreasonable obstruction complaint if the process of neighbor
reconciliation fails to resolve the dispute.
B. Complaints must be in writing and submitted to the director and shall contain the following:
1. A statement of complaint including information on how the view/ access to sunlight is
unreasonably obstructed per the evaluation criteria in MMC 8.08.160;
2. An address or other information identifying the property having the cause of obstruction;
3. A request for a hearing to adjudicate the complaint;
4. Contact information for sending notice to both the complainant and the respondent;
5. Evidence showing the establishment of rights under MMC 8.08.050 such as:
a. A description of the nature and extent of the alleged obstruction with corroborating
evidence such as photographs, slides, or prints;
b. Evidence establishing the date the complainant took ownership of their real property;
c. Evidence that the view or access to sunlight was enjoyed after the complainant took
ownership of their real property; and
d. Other relevant information;
6. Evidence of the neighbor reconciliation efforts;
7. Restorative actions requested consistent with MMC 8.08.160;
8. An advanced deposit fee in the amount established by the City’s fee schedule to reimburse
the City for expenditures including administering and processing the complaint.
ATTACHMENT A
Ordinance No. 953 11 of 15
8.08.130 Unreasonable obstruction complaint hearing.
A. The hearing examiner is designated as the authority to decide an unreasonable obstruction
complaint.
B. Upon acceptance of a complaint as prescribed in MMC 8.08.120, the director shall:
1. Transmit a copy of the complaint to the respondent; and
2. Notify the respondent that a reply is due within 30 days to the director, but the respondent
is not obligated to reply.
C. If the respondent replies to a complaint, the response shall include the following:
1. A written answer to the complaint;
2. Any reports or exhibits they wish to present in answering the complaint;
3. Any mitigating circumstances they wish to identify for consideration in resolving the
complaint.
D. The director may grant up to a 21-day extension to reply to a complaint if the request for such
an extension is in writing prior to the deadline established in MMC 8.08.130(B) and shows
reasonable cause for the extension.
E. Failure by the respondent to reply to a complaint shall not invalidate the proceedings or result
in a default order against the respondent.
F. Upon receipt of the respondent’s reply to the complaint or upon the expiration of the reply
period, the director shall transmit a copy of the complaint and the respondent’s reply to the
hearing examiner.
G. The director shall schedule with the hearing examiner a hearing to decide the complaint. The
director shall transmit a notice of the date, time and place of the hearing to the complainant
and the respondent at least 10 days prior to the hearing date.
H. The hearing shall be conducted in accordance with the rules for hearings set forth in MMC
2.78.060. The hearing examiner may establish proceedings and issue orders in such a
manner as the hearing examiner deems appropriate to ensure a fair, timely and reasoned
decision.
I. The City shall at a minimum post notice of the hearing date, time and place on its website.
The hearing shall be open to the public, but it is at the hearing examiner’s discretion to allow
public testimony at the hearing.
8.08.140 Hearing examiner’s determination.
A. The hearing examiner shall:
1. Determine whether the complainant has a right to seek to preserve and/ or restore views
or access to sunlight on their property, and whether an unreasonable obstruction exists
using the evaluation criteria in MMC 8.08.150; or
2. Direct the complainant and/ or respondent to take specific actions before bringing the
matter back before the hearing examiner.
B. If the hearing examiner determines that an unreasonable obstruction exists, the hearing
examiner shall determine the least invasive procedures for remedying the obstruction using
the limitations on restorative action set forth in MMC 8.08.160.
C. The hearing examiner’s determination shall set forth appropriate directions for taking
restorative action including, but not limited to directions for obtaining cost estimates for
restorative work.
D. The hearing examiner’s determination shall be in writing and be consistent with applicable
provisions for a Type 3 decision in MMC 20.80.190.
E. The respondent’s failure to reply to any of the notices required under this chapter or failure to
participate in the process shall not factor into the determination of whether an unreasonable
obstruction exits or in determining restorative action.
ATTACHMENT A
Ordinance No. 953 12 of 15
F. A party of record aggrieved by the hearing examiner’s decision may submit a request for
reconsideration pursuant to MMC 2.78.090.
G. A hearing examiner’s determination of an unreasonable obstruction shall not become final
until all expenses of the City for processing the complaint have been paid. Failure to pay the
full amount owed within 30 days after the City sends an invoice shall void the decision unless
the director agrees to a longer period for payment.
8.08.150 Unreasonable obstruction – evaluation criteria.
A. View obstruction. The following criteria are to be considered in determining the existence of
an unreasonable obstruction of views:
1. The extent foliage obstructs views from a primary living or entertainment area, which had
existed after the complainant took ownership of their property;
2. The quality of the view being obstructed from a primary living or entertainment area, which
had existed after the complainant took ownership of their property;
3. The extent to which the claimed obstruction was reasonably foreseeable at the time the
complainant took ownership of their property;
4. The extent to which the complainant’s view, which had existed after the complainant took
ownership of their property, has been diminished by factors other than growth of foliage;
and
5. The extent to which removal or pruning of foliage will infringe on the respondent’s privacy.
B. Sunlight obstruction. The following criteria are to be considered in determining the existence
of an unreasonable obstruction of access to sunlight:
1. The extent the complainant suffers from substantial deprivation of access to sunlight that
had existed at some time during ownership of their property;
2. The extent foliage from the respondent’s property contributes significantly to the
substantial deprivation of sunlight;
3. The foliage causing the substantial deprivation of sunlight is located within 50 feet of the
complainant’s property;
4. The extent to which removal or pruning of foliage will infringe on the respondent’s privacy.
8.08.160 Unreasonable obstruction – limitations on restorative action.
If the hearing examiner determines an unreasonable obstruction exists, the following factors shall
be considered in determining what restorative action to apply:
A. The extent to which views or access to sunlight is obstructed from a primary living or
entertainment area;
B. The extent to which one or more of the unique features described in the definition of a view
are obstructed from a primary living or entertainment area;
C. The extent to which shade from foliage on the respondent’s property reduces sunlight and
affects foliage on the complainant’s property;
D. The extent to which foliage provides benefits including, but not limited to privacy, wildlife
habitat, soil stability, energy conservation, and controlling water runoff;
E. The effect restorative action can be anticipated to have on other trees and vegetation;
F. The extent to which restorative action will interfere with the use and enjoyment of the
respondent’s property; and
G. The requirement in MMC 8.08.140(B) that restorative actions be the least invasive remedy for
the unreasonable obstruction.
8.08.170 Compliance with city codes required.
ATTACHMENT A
Ordinance No. 953 13 of 15
All restorative action must comply with the requirements set forth in the Medina Tree Code,
Chapter 20.52 MMC. The hearing examiner may request such information from the parties as
necessary, including but not limited to an arborist’s evaluation, to ensure restorative action
complies with the standards for tree pruning and/or removal set forth in Chapter 20.52. MMC.
8.08.180 Effect of a determination of an unreasonable obstruction.
A. The effect of a hearing examiner’s determination of an unreasonable obstruction is a land use
decision as defined in RCW 36.70C.020. Any conditions set forth in the determination for
restorative action shall be binding on the complainant and the respondent.
B. The respondent shall comply with the hearing examiner’s decision within 120 days after
issuance of a notice of decision (see MMC 20.80.200), unless a different time is granted by
the hearing examiner.
C. The complainant shall make a good faith effort to work with the respondent to comply with the
terms and conditions of the hearing examiner’s decision.
8.08.190 Allocation of costs.
Unless mutually agreed to otherwise between the parties, all costs associated with the processing
of the complaint and any restorative action, including any requirements under Chapter 20.52 MMC
(Medina Tree Code), shall be paid by the complainant.
8.08.200 Enforcement.
This section applies if the hearing examiner affirms the existence of an unreasonable obstruction
as prescribed in MMC 8.08.070 and restorative action is required.
A. Petition for noncompliance.
1. A complainant may file a petition for noncompliance if the respondent fails to comply with
the terms of restorative action set forth in the hearing examiner’s determination of an
unreasonable obstruction.
2. A petition for noncompliance shall be in writing and include the following:
a. A statement requesting an order of noncompliance and the reasons for the request;
b. A copy of the hearing examiner’s decision with the required restorative action;
c. Evidence that a good faith effort was made by the complainant pursuant to MMC
8.08.180(C);
d. Evidence that the terms and conditions of the hearing examiner’s decision have not
been complied with; and
e. Payment of fees established under the City’s fee schedule.
B. Processing procedures.
1. The complainant shall submit a complete petition for noncompliance meeting the
requirements in MMC 8.08.200(A)(2) to the director;
2. Upon acceptance of a complete petition for noncompliance:
a. The City shall transmit the request to the hearing examiner and schedule a hearing;
b. The City shall transmit notice of the hearing date, time and place to the complainant
and respondent at least 10 days prior to the hearing date;
c. The hearing shall be conducted in accordance with the rules for hearings set forth in
MMC 2.78.060;
d. The hearing examiner may establish proceedings and issue orders in such a manner
as the hearing examiner deems appropriate to ensure a fair, timely and reasoned
decision;
ATTACHMENT A
Ordinance No. 953 14 of 15
e. The City shall at a minimum post notice of the hearing date, time and place on its
website.
f. The hearing shall be open to the public, but it is at the hearing examiner’s discretion
to allow public testimony at the hearing.
3. Following completion of the hearing, the hearing examiner must decide the petition for
noncompliance by either:
a. Granting the petition if the evidence supports the request; or
b. Granting the petition with conditions if the evidence supports the request and such
conditions; or
c. Denying the petition if the evidence does not support the request.
4. The hearing examiner’s decision must be in writing and consistent with MMC
20.80.190(G).
5. If the hearing examiner grants the petition, the City shall transmit a copy of the order for
noncompliance to the respondent and the complainant.
6. A party of record aggrieved by the hearing examiner’s decision may submit a request for
reconsideration pursuant to MMC 2.78.090. Submittal of a request for reconsideration
shall stay any penalties set forth in MMC 08.08.200(C) until the request for reconsideration
is decided.
C. Penalties.
1. The granting of a petition for noncompliance shall represent a determination that the
respondent has failed to comply with a hearing examiner’s order and shall constitute a
civil violation.
2. A civil violation under this chapter shall carry an automatic monetary fine of $1,800 plus
the hearing examiner may assess an additional fine of up to $250 per day. Monetary fines
are cumulative and the additional fine of up to $250 may be assessed each day until the
director is satisfied the respondent complies with the terms and conditions for restorative
action in the hearing examiner’s decision.
3. The respondent shall be responsible for paying all penalties.
4. Applicable notice of violation procedures set forth in Chapter 1.15 MMC shall be used for
issuing notices and for the administration and collection of fines, except no administrative
appeal shall be available.
5. The director is authorized to reduce the total fine by up to 50 percent, if the respondent
presents mitigating circumstances that the director determines warrant a reduction, and
the respondent:
a. Requests a reduction of the fines in writing; and
b. Complies with the hearing examiner’s order including all restorative actions within 30
days of the start date fines are assessed; and
c. Contacts the director to verify compliance has been completed.
D. Burden of proof.
1. The complainant has the burden of proof when filing a petition for noncompliance to
demonstrate that the respondent failed to comply with the restorative actions prescribed
by the hearing examiner.
2. The respondent has the burden of proof to demonstrate compliance with restorative
actions if the hearing examiner grants a petition for noncompliance.
E. If the hearing examiner denies the petition for noncompliance, the complainant cannot submit
another petition for noncompliance for at least six months.
ATTACHMENT A
Ordinance No. 953 15 of 15
8.08.220 Limitation on application.
This chapter shall not be construed to affect obligations imposed by easement, covenants or
agreements.
8.08.230 No duty to abate.
No provision or term used in this chapter shall impose any duty upon the city or any of its officers
or employees to abate an unreasonable obstruction as set forth in chapter 8.08 MMC.