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HomeMy WebLinkAboutOrdinance No. 095818-7 (Revised 3/16) Medina Municipal Code 18.16.010 Chapter 18.12 CRITICAL AREAS (Repealed by Ord. 924) Chapter 18.16 TREES – VIEW AND SUNLIGHT OBSTRUCTION Sections: 18.16.010 Purpose and findings. 18.16.020 Definitions. 18.16.030 Rights established. 18.16.040 Unreasonable obstruction – Nuisance. 18.16.050 City guidelines concerning restorative action. 18.16.060 Objective criteria to govern. 18.16.070 Methods of relief. 18.16.080 Limitations on relief. 18.16.090 Limitations on pruning. 18.16.100 Process for resolution of obstruction disputes. 18.16.110 Tree claim preparation. 18.16.120 Binding arbitration. 18.16.130 Litigation. 18.16.140 Apportionment of costs. 18.16.150 Limitation. 18.16.160 Application. 18.16.010 Purpose and findings. This chapter is enacted to provide a voluntary mechanism for the resolution of disputes involving preserving and enhancing views and access to sun- light between Medina neighbors. It should not be construed to provide rights beyond those entitled under Washington law. The city has no right or obligation to enforce any of the provisions in MMC 18.16.030 through 18.16.150. This chapter is enacted in recognition of the importance of views and sunlight to properties within the city of Medina and to provide a fair and structured mech- anism for resolving disputes relating to views and sunlight. The Medina comprehensive plan recog- nizes the importance of views and access to sun- light as well as the importance of preservation of trees and other vegetation. This chapter is based upon the following findings which are adopted by the city council of Medina following extensive study and public input from multiple public hear- ings. A. Among the features that contribute to the attractiveness and livability of the city of Medina are its trees, both native and introduced, and the views obtained from a variety of elevations throughout the city. B. Trees, whether growing singly, in clusters or in woodland settings, provide a wide variety of psychological and tangible benefits for both resi- (Revised 3/16)18-8/16 This page left intentionally blank. Medina Municipal Code 18.16.020 18-17 (Revised 9/14) dents and visitors. Trees contribute to the natural environment by modifying temperatures and winds, replenishing oxygen to the atmosphere and water to the soil, controlling soil erosion, and pro- viding wildlife habitat. Trees contribute to the visual environment by providing scale, color, sil- houette and mass, by creating visual screens and buffers to separate structures, and by promoting individual privacy. Trees contribute to the eco- nomic environment of the city by stabilizing prop- erty values and reducing the need for surface drainage systems. Trees contribute to the cultural environment by becoming living landmarks of the city’s history and providing a critical element of nature in the midst of urban development. C. Views also produce a variety of significant and tangible benefits for both residents and visitors to the city. Views contribute to the economic envi- ronment by substantially enhancing property val- ues. Views contribute to the visual environment by providing inspiring panoramic vistas. Views of attractive subjects with significant horizontal expanse add substantial value to real property. Such views are considered significant in adding to the value of real property by the King County assessor. Access to plentiful sunlight enhances liv- ability and promotes the general welfare of the entire community. D. Trees, views and access to sunlight and the benefits to be derived from each may come into conflict. Tree planting locations and species selec- tions may produce both intended beneficial effects on the property where they are planted, and unin- tended deleterious effects on neighboring proper- ties. Trees may block light, cause the growth of mess, harbor plant disease, retard the growth of grass and interfere with the enjoyment of views and sunlight, leading to the lessening of property values. E. With appropriate safeguards requiring con- sideration of all the factors set forth herein, affected property owners requesting view or sun- light access improvement can be given substantial relief without infringing upon the rights of the owners of properties containing trees. F. It is in the interest of the public welfare, health and safety to establish standards for the res- olution of view and sun obstruction claims and to establish a structure for resolution of such claims which will provide a reasonable balance between the values of tree ownership and view and sunlight related values. G. When a view or sunlight obstruction dispute arises, the parties should act reasonably to resolve the dispute through friendly communication, thoughtful negotiation, compromise and other tra- ditional means. Those disputes which are not resolved through such means may be resolved by following the procedures established herein. H. It is the intent of the city that the provisions of this chapter receive thoughtful and reasonable application. It is not the intent of the city to encour- age clear-cutting or substantial denuding of any property of its trees by overzealous application of the provisions of this chapter. (Ord. 816 § 1, 2007) 18.16.020 Definitions. The definitions contained in Chapter 20.12 MMC shall apply to this chapter except that the definitions of this section shall apply in the case of any conflict with the definitions in Chapter 20.12 MMC. A. “Complainant” means a complaining prop- erty owner in the city of Medina who alleges that trees located on the property of another are causing an unreasonable obstruction of pre-existing views or sunlight. B. “Owner” means any individual, firm, part- nership, corporation, trust or other legal entity owning property in the city of Medina. C. “Tree” means a woody perennial plant which usually, but not necessarily, has a single trunk and a height of 15 feet or more, or has a diam- eter of five inches measured one foot above the root crown; references herein to “tree” shall include the plural. “Tree” shall also include any plant material or shrubbery planted or growing in a dense continuous line 20 feet in length or longer so as to form a thicket or naturally grown fence with an average height in excess of eight feet. D. “Historic tree” means any tree whose age precedes the incorporation of Medina in 1955. E. “Tree owner” means the record owner of the real property on which a tree is located. F. “View” means an actual or potential vista. G. “Significant view” means an actual or poten- tial vista observable from within a primary living or entertaining area of a residence which has a sig- nificant horizontal expanse and which includes a vista of the surface of Lake Washington, the oppo- site 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. H. “Substantial deprivation of sunlight” means the loss of a substantial portion of direct or indirect sunlight in a primary living or entertaining area or 18.16.030 (Revised 9/14)18-18 in a significant portion of the complainant’s real property. I. “Primary living or entertaining area” means an area located between the exterior walls of a res- idence from which a view is observed most often by the occupants relative to other portions of the residence. The determination of primary living or entertaining area is to be made on a case-by-case basis. J. “Dense screening” means trees which are planted or growing closely together which com- bine to block views or obstruct access to sunlight. K. “Objective evaluation” means an evaluation based upon the values assigned to tree ownership, views and access to sunlight by reasonable persons in the community as opposed to the views of indi- vidual parties. L. “Windowing” means a form of thinning by which openings or “windows” are created to restore views or sunlight. (Ord. 816 § 2, 2007) 18.16.030 Rights established. A person shall have the right to use the pro- cesses set forth in this chapter and to seek to pre- serve and restore views or sunlight which existed at any time since he or she purchased or occupied a property, when such views or sunlight are from the primary living or entertainment area and have sub- sequently been unreasonably obstructed by the growth of trees. In addition to the rights described in this section, private parties have the right to seek remedial action for imminent danger caused by trees. All persons are advised that trees which are located within public rights-of-way are governed by Chapter 20.52 MMC and that properties under- going development are subject to the tree preserva- tion and landscaping requirements of Chapter 20.52 MMC. (Ord. 816 § 3, 2007) 18.16.040 Unreasonable obstruction – Nuisance. The unreasonable obstruction of views or sun- light by planting, uncontrolled growth or mainte- nance of trees satisfying the minimum requirements for relief in MMC 18.16.050(A) con- stitutes a private nuisance subject to redress as pro- vided in this chapter. If a person shall plant, maintain or permit to grow any tree which unrea- sonably obstructs the view from or sunlight reach- ing the primary living or entertainment area of any other parcel of property within the city of Medina as set forth in MMC 18.16.050, then a complainant shall have the rights set forth in this chapter. (Ord. 816 § 4, 2007) 18.16.050 City guidelines concerning restorative action. A.Minimum Requirements. No complainant shall be entitled to seek restorative action unless the complainant meets one of the following mini- mum criteria: 1. If the application is based on loss of view: that the claimant has a significant view as defined herein or has had a significant view at some time since purchasing the property; that the tree alleged to be interfering with a significant view is located within 300 feet of the exterior wall of a primary liv- ing or entertaining area from which the significant view could be seen; and that more than 60 percent of the horizontal expanse of that portion of the view which is seen over the property of the tree owner is obscured by trees or structures located on the tree owner’s property. 2. If the application is based on interference with access to sunlight: that the claimant suffers from a substantial deprivation of access to sunlight which had existed at some time subsequent to pur- chasing the property; and that the tree allegedly causing the substantial deprivation of sunlight is located within 50 feet of the complainant’s prop- erty line. B. Additional Elements for Consideration. No claimant shall be entitled to seek restorative action unless the claimant’s view or access to sunlight is unreasonably obstructed based upon an objective evaluation. In determining whether view or access to sunlight is unreasonably obstructed, the follow- ing guidelines, if relevant, shall be considered: 1. The extent of the alleged view obstruction, expressed as percentage of the total view, and cal- culated by means of a survey or by photographs or both; 2. The extent to which one or more of the unique view features described in MMC 18.16.020(G) are obstructed; 3. The extent to which the tree causes shade, reducing access to sunlight; 4. The extent to which the tree provides ben- efits to the tree owner or others including but not limited to visual screening, wildlife habitat, soil stability (as measured by soil structure, degree of slope and extent of root system), energy conserva- tion and/or climate control; 5. The extent to which the tree affects neigh- boring vegetation; Medina Municipal Code 18.16.100 18-19 (Revised 3/16) 6. The visual quality of the tree, including but not limited to species characteristics, size, form, texture, color, vigor, location and other tree factors, including such items as indigenous tree species, specimen tree quality and rare tree species; 7. The extent to which the provisions of Chapter 20.50 MMC, Critical Areas, and of Chap- ter 20.52 MMC, Tree and Vegetation Management Code, may be inconsistent with any portion of the relief requested; 8. The extent to which the proposed action may have an adverse affect on the health or stabil- ity of other trees. (Ord. 816 § 5, 2007) 18.16.060 Objective criteria to govern. In determining whether relief may be granted, the objective criteria set forth in this chapter shall govern. No party shall be entitled to an unob- structed view. (Ord. 816 § 6, 2007) 18.16.070 Methods of relief. Methods of relief that may be granted include pruning, thinning, windowing, topping, or removal of the tree. (Ord. 816 § 7, 2007) 18.16.080 Limitations on relief. Any relief which may be granted shall be limited by the following standards: A. No relief shall be granted unless the relief will substantially improve a significant view or access to sunlight. B. Only the least invasive procedure which would grant reasonable relief can be required. C. Removal will not be required unless prun- ing, or topping would not provide adequate relief. D. If removal or topping are required, on the request of the tree owner, the tree shall be replaced at the complainant’s expense. The replacement tree shall be chosen by the tree owner from a list of trees established by the city which will not cause a reoccurrence of the unreasonable obstruction. E. If one or more methods of relief would pro- vide reasonable relief to the complainant, the rea- sonable desires of the tree owner shall govern. (Ord. 816 § 8, 2007) 18.16.090 Limitations on pruning. All pruning ordered to be performed will con- form to the following limitations: A. No more than one-third of the tree canopy shall be removed during any growing season. B. If the tree canopy is raised, removal of the lower branches shall not exceed 25 percent of the total tree canopy. C. In pruning to reduce the height of a tree, all cuts shall be made to strong laterals or to the parent limb. Whenever possible, limbs shall be cut back to laterals that are at least one-third the size of the par- ent limb. D. Pruning shall be evenly distributed through- out a tree’s canopy. E. When appropriate based on the genus of the tree, pruning shall be performed only during the horticulturally approved times. F. In addition to the standards set forth herein, pruning shall comply with guidelines for pruning established by the National Arborist Association. (Ord. 816 § 9, 2007) 18.16.100 Process for resolution of obstruction disputes. The following process shall be used in the reso- lution of view and sunlight obstruction disputes: A. Initial Reconciliation. A complainant who believes that tree growth on the property of another has caused unreasonable obstruction of views or sunlight from a primary living or entertaining area shall notify the tree owner in writing of such con- cerns. Notification should, if possible, be accom- panied by a personal discussion to enable the complainant and tree owner to attempt to reach a mutually agreeable solution. B. Mediation. If the initial reconciliation attempt fails, the complainant shall propose medi- ation and as a timely means to settle the obstruction dispute. Acceptance of mediation by the tree owner shall be voluntary, but the tree owner shall have no more than 30 days from service of notice to either accept or reject the offer of mediation. If mediation is accepted, the parties shall mutually agree upon a mediator within 10 days. It is recommended that the services of a profes- sionally trained mediator be employed. Mediation may be arranged through the Seattle-King County Alternate Dispute Resolution Center. The mediation meeting may be informal. The mediation process may include the hearing of the viewpoints of lay or expert witnesses and shall include a site visit to the properties of the com- plainant and the tree owner. The parties are encour- aged to contact immediate neighbors and solicit input. The mediator shall consider the purposes and policies set forth in this chapter in attempting to help resolve the dispute. The mediator shall not have the power to issue binding orders for restor- ative action, but shall strive to enable the parties to resolve their dispute by written agreement in order 18.16.110 (Revised 3/16)18-20 to eliminate the need for binding arbitration or liti- gation. (Ord. 816 § 10, 2007) 18.16.110 Tree claim preparation. In the event that the initial reconciliation process fails, and mediation either is declined by the tree owner or fails, the complainant must prepare a tree claim and provide a copy to the tree owner in order to pursue either binding arbitration or litigation as set forth in this chapter. A tree claim shall consist of all of the following: A. A description of the nature and extent of the alleged obstruction, including pertinent and cor- roborating physical evidence. Evidence may include, but is not limited to, photographic prints, negatives or slides. Evidence of the date of prop- erty acquisition by the complainant must be included. B. The location of all trees alleged to cause the obstruction, the address of the property upon which the trees are located, name and address. C. Evidence of the failure of initial reconcilia- tion to resolve the dispute. The complainant must provide evidence that written attempts at reconcil- iation have been made and have failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspon- dence. D. Evidence that mediation has been attempted and has failed, or has been declined by the tree owner. E. The specific restorative actions proposed by the complainant to resolve the unreasonable obstruction. (Ord. 816 § 11, 2007) 18.16.120 Binding arbitration. In those cases where the initial reconciliation process fails and where mediation is declined by the tree owner or has failed, the complainant must offer in writing to submit the dispute to binding arbitration, and the tree owner may elect binding arbitration. The tree owner shall have 30 days from service of notice to accept or reject binding arbitration. If accepted, the parties shall agree on a specific arbi- trator within 21 days, and shall indicate such agree- ment in writing. The arbitrator shall use the provisions of this chapter to reach a fair resolution of the dispute and shall submit a complete written report to the com- plainant and the tree owner. The report shall include the arbitrator’s findings with respect to MMC 18.16.050(A) and (B), 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. The decision of the arbitrator is binding on the parties. Any decision of the arbitrator may be enforced by civil action, as provided by law. (Ord. 816 § 12, 2007) 18.16.130 Litigation. In those cases where binding arbitration is declined by the tree owner, then civil action may be pursued by the complainant for resolution of the view or sunlight obstruction dispute under the pro- visions and guidelines set forth in this chapter. The complainant must state in the lawsuit that mediation and arbitration were offered and not accepted. A copy of any final resolution of the liti- gation shall be filed with the city clerk. (Ord. 816 § 13, 2007) 18.16.140 Apportionment of costs. A. Mediation and Arbitration. The complainant and tree owner shall each pay 50 percent of media- tion or arbitration fees, unless they agree otherwise or allow the mediator or arbitrator discretion to allocate costs. B. Restorative Action. The costs of restorative action shall be determined by mutual agreement or through mediation, arbitration, court decision or settlement. (Ord. 816 § 14, 2007) 18.16.150 Limitation. This chapter shall not be construed to affect obligations imposed by easement, covenants or agreements. (Ord. 816 § 15, 2007) 18.16.160 Application. A. This chapter shall not apply to trees located on property owned by the city (not including rights-of-way). Individuals who are adversely affected by trees located on property owned by the city may approach the city park board for requested relief. The potential for obstruction of views or substantial obstruction of sunlight shall be consid- ered by the city when planting trees on property owned by the city. B. This chapter shall not apply to trees located within city rights-of-way which trees shall con- tinue to be subject to the requirements of Chapter 20.52 MMC. C. This chapter shall not apply to historic trees. (Ord. 816 § 16, 2007)