12.45.040 Standards for resolution of disputes.
A. In resolving the tree dispute, the tree mediator, tree arbitrator or court shall consider the benefits and burdens derived from the alleged obstruction within the framework of the objectives of this chapter as set forth in Section 12.45.010 in determining what restorative actions, if any, are appropriate. The burden of proof shall be on the complaining party.
1. Benefits:
(a) Visual quality of the tree(s), including but not limited to species characteristics, size, growth, form and vigor.
(b) Location with respect to overall appearance, design, and/or use of the tree owner’s property.
(c) Soil stability provided by the tree(s) considering soil structure, degree of slope and extent of the tree’s root system.
(d) Visual, auditory and wind screening provided by the tree(s) to the tree owner and to neighbors. Existing privacy provided by the tree(s) to the tree owner’s home shall be given particular weight.
(e) Energy conservation and/or climate control provided by the tree(s).
(f) Wildlife habitat provided by the tree(s).
(g) The economic value of the tree(s) as measured by criteria developed by the International Society of Arboriculture and the economic value of the property as a result of the tree(s).
(h) Other tree-related factors, including but not limited to:
i. The degree to which the species is native to the local region or area
ii. Indigenous nature of the species to which the tree belongs
iii. Specimen tree quality
iv. Rare tree species, and the frequency of new planting of a tree
2. Burdens:
(a) The hazard posed by a tree or trees to persons or structures on the property of the complaining party including but not limited to fire danger and the danger of falling limbs or trees.
(b) The extent to which the trees diminish the amount of sunlight available to the garden or home of the complaining party.
(c) The extent to which the trees interfere with efficient operations of a complaining party’s pre-existing solar energy system.
(d) The existence of landmarks, vistas or other unique features which cannot be seen because of growth of trees since the acquisition of the property.
(e) The extent to which the alleged obstruction interferes with sunlight or view. The degree of obstruction shall be determined by means of a measuring instrument or photography.
(f) The extent to which solar access or the view is diminished by factors other than trees.
(g) Deleterious effect of the trees upon the complaining party’s vegetation through loss of heat and light except that the dropping of leaves or maintenance factors shall not be a burden under this chapter.
3. Restorative actions: The tree mediator shall recommend or the tree arbitrator or court shall order restorative action or no action according to Section 12.45.040 (Standards). Restorative actions may include written directions as to appropriate timing of trimming, thinning, topping or removal. Such restorative actions are to apply only to current parties to the dispute. The tree arbitrator or court may require compensation to the tree owner for value lost due to restorative actions.
Possible restorative actions may include:
-Trimming
-Thinning
-Delayed trimming or thinning
-Topping
-Tree removal, possibly with replacement plantings
(a) Restorative actions shall be limited to the trimming and/or thinning of branches where possible and practical.
Trimming or thinning may be on a delayed basis, providing time for the top of the tree to grow above the point where it obstructs sunlight or view.
(b) When trimming and/or thinning of branches is not a feasible solution, the impact on the health of the tree shall be considered and replacement may be required. Topping is not a generally accepted arboricultural practice and therefore is not recommended by the City.
(c) In those cases where tree removal eliminates or significantly reduces the tree owner’s benefits, replacement plantings shall at the tree owner’s option be set forth in writing prior to the tree removal. The tree owner may elect tree removal with replacement plantings (as an alternative to trimming, thinning and topping).
(d) All trimming, thinning, topping and tree removal required under this chapter shall be performed by a person or firm selected by the tree owner with the concurrence of the complaining party, except that in the event that the complaining party is not obligated to bear any of the cost for such action, their concurrence is not required. The use of a certified arborist for such work is encouraged but not required.
(e) The extent of solar access or view available and documentable as present at any time during the tenure of the present owner or legal occupant is the limit of restorative action which may be required. If the complaining party is seeking a view or sunlight from an addition, the complaining party has no right to a view or solar access greater than that which existed at the time the construction of the addition was completed, or August 6, 1987, whichever date is later.
(f) No restorative action may be required concerning any tree the base of which is more than three hundred feet from the immediate vicinity of the dwelling of the complaining party’s property. If no dwelling exists, the distance shall be determined from the most likely dwelling site upon the property or from the geographical center of the property at the discretion of the mediator, arbitrator or court as appropriate.
(g) A tree which has been the subject of restorative action under the terms of this chapter is exempted from other property owners’ claims for a period of five years from date of filing of a tree claim.
(h) Nothing in this section shall be construed to deny compensation to a tree owner to which a tree owner would be entitled under any other provision of law. (Ord. 6286-NS § 1 (part), 1995: Ord. 6173-NS § 1 (part), 1993: Ord. 5817-NS § 1 (part), 1987)