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HomeMy WebLinkAboutTC Ord 1991-12-03 (2) ORDINANCE NO. 379 N.S. AN ORDINANCE OF THE TOWN COUNCIL OF THE .TOWN OF TIBURON REPEALING CHAPTER 15 AND ADDING NEW CHAPTERS IS-AND 15A OF THE TIBURON MUNICIPAL CODE WITH RESPECT TO VIEW AND SUNLIGHT OBSTRUCfION AND TREES Section -I. Findines. WHEREAS, the Planning Commission has held a series of public hearings, most recently on October 23, 1991, and has received public testimony on this matter; and WHEREAS, the Town Council has held a public hearing on November 19, 1991, and has received public testimony on this matter; and WHEREAS, all notices and procedures required by law attendant to the adoption of this Ordinance have been followed; and WHEREAS, the Planning Commission and Town Council have found that the proposed Town Code revision is consistent with the goals and policies of the Tiburon General Plan and other ordinances and regulations; and WHEREAS, the Town Council has found that the project is categorically exempt from the requirements of CEQA per Section 15308 of the CEQA Guidelines. Section 2. Chapter 15 of the TIburon Municipal Code Repealed. Chapter 15 of the Tiburon Municipal Code (Ordinances No. 74 O.S., No. 46 N.S., No. 164 N.S., No. 235 N.S., and No. 250 N.S.), pertaining to trees and view and sunlight obstruction is hereby repealed, provided however that this repeal shall not affect or prevent the prosecution of any person for any act done or omitted in violation of this Chapter prior to the effective date of this ordinance. In addition, this repeal shall not invalidate nor prevent the enforcement of any view obstruction decisions of the Town made prior to the effective date of this ordinance. Section 3. Chapter 15 of the TIburon Municipal Code Added. A new Chapter 15 entitled "View and Sunlight Obstruction From Trees" is hereby added to the Tiburon Municipal Code as follows: 1 CHAPTER 15: VIEW AND SUNLIGHT OBSTRUCTION FROM TREES Section 15-1. Purpose and Principles. Section 15-2. Definitions. Section 15-3. Rights Established. Section 15-4. Unreasonable Obstruction Prohibited. Section 15-5. Criteria for Determining Unreasonable Obstruction. Section 15-6. Criteria for Determining Appropriate Restorative Action. Section 15-7. Types of Restorative Action. Section 15-8. Town Guidelines Concerning Restorative Action. Section 15-9. Process for Resolution of Obstruction Disputes. Section 15-10. Tree Claim Preparation. Section 15-11. Binding Arbitration. Section 15-12. Litigation. Section 15-13. Apportionment of Costs. Section 15-14. Liabilities. Section 15-15. Limitations. Section 15-16. Trees on Town-owned Property. Section 15-1. Purpose and Principles. 2 The purposes of this Chapter are to: A. Establish the right of persons to preserve views or sunlight which existed at any time since they purchased or occupied a property from unreasonable obstruction by the growth of trees. B. Establish a process by which persons may seek restoration of such views or sunlight when unreasonably obstructed by the growth of trees or other vegetation (see definition of "Tree"). The rights and the restorative process are based upon the following general principles: 1. The Town recognizes that residents, property owners, and businesses cherish their outward views from the Tiburon Peninsula, and that they also cherish the benefits of plentiful sunlight reaching their buildings and yards. The Town recognizes that both outward views and plentiful sunlight reaching property contribute greatly to the quality of life in Tiburon, and promote the general welfare of the entire community. 2. The Town also recognizes the desire of many of its residents, property owners, and businesses for beautiful and plentiful landscaping, including trees. The Town 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. 3. Owners and residents should maintain trees on their property in a healthy condition for both safety reasons and for preservation of sunlight and outward views. Before planting trees, owners and residents should consider view and sunlight blockage potential, both currently and at tree maturity. Persons have the right to seek civil remedies when threatened by dangerous tree growth. 4. The Town shall establish a process by which persons may seek to preserve and restore views or sunlight which existed at any time since they purchased or occupied property from unreasonable obstruction by the growth of trees. The Town shall also establish a list of factors to be considered in determining appropriate actions to restore views or sunlight. 5. 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 traditional means, such as discussions with the appropriate neighborhood or homeowner association. 3 Those disputes which are not resolved through such means shall follow the procedure established herein. . 6. It is the intent of the Town that the provisions of this Chapter receive thoughtful and reasonable application. It is not the intent of the Town to encourage clear-cutting or substantial denuding of any property of its trees by overzealous application of provisions of this Chapter. Section 15-2. Definitions. For the purpose of this Chapter, the meaning and construction of words and phrases is as follows: Active Use Area: The most frequently occupied portion or portions of a commercial building from which views are available. Arbitrator: A neutral person who will conduct a process similar to a trial, and who will hear testimony, consider evidence, and make a binding decision for the disputing parties. Bindine Arbitration: A legal procedure as set forth in Section 1280 et seq. of the Code of Civil Procedure. Complainin2 Party: Any property owner (or legal occupant with written permission of the property owner) who alleges that trees located on the property of another person are causing unreasonable obstruction of his or her pre-existing views or sunlight. . Mediator: A neutral, objective third person who assists people in finding mutually satisfactory solutions to their problem. Person: Any individual, corporation, partnership, firm, or other legal entity, excluding the Town of Tiburon. Primary Livin2 Area: The portion or portions of a residence from which a view is observed most often by the occupants relative to other portions of the residence. The determination of primary living area is to be made on a case-by-case basis. Protected Tree: Any of the following: HERITAGE TREE, meaning any tree which has a trunk with a circumference exceeding sixty (60) inches, measured twenty-four (24) inches above the ground level. 4 OAK TREE, including coast live oak, blue oak, California black oak, interior live oak, canyon live oak, Engelmann oak, or valley oak tree. DEDICATED TREE, meaning a tree of special significance so designated by resolution of the Town Council. Removal: The elimination of any tree from its present location. Restorative Action: Any specific requirement to resolve a tree dispute. Stump Growth: New growth from the remaining portion of the tree trunk, the main portion of which has been cut off. Sunlieht: The availability of direct or indirect sunlight to the primary living area of a residence. Thinnine: . The selective removal of entire branches from a tree so as to improve visibility through the tree and/or improve the tree's structural condition. . Toppine: Elimination of the upper portion of a tree's trunk or main leader. Tree: Any woody plant with the potential to obstruct views or sunlight, including but not limited to trees, shrubs, hedges, and bushes. References to "tree" shall include the plural. Tree Claim: The written basis for arbitration or court action under the provisions' of this Chapter. Tree Owner: Any person owning' real property in Tiburon upon whose land is located a tree or trees alleged by a Complaining Party to cause an unreasonable obstruction. Trimmine: The selective removal of portions of branches from' a tree so as to modify the tree(s) shape or profile or alter the tree's appearance. 5 View: A scene from the primary. living area of a residence or the active use areas of a non-residential building. The term "view" includes both upslope and downslope scenes, but' is generally medium or long range in nature, as opposed to short range. Views include but are not limited to skylines, bridges, landmarks, distant cities, distinctive geologic. features, hillside terrains, wooded canyons, ridges, and bodies of water. Some additional examples are: San Francisco Bay (including San Pablo Bay, Richardson Bay, and islands therein); The San Francisco-Oakland Bay Bridge; The Golden Gate Bridge; The Richmond-San Rafael Bridge; Mount Tamalpais; . The Tiburon Peninsula or surrounding communities (including the City of San Francisco). Windowine: A form of thinning by which openings or "windows" are created to restore views and or sunlight. Section 15-3. Ri~ts Established. Persons shall have the right to preserve and seek restoration of views or sunlight which existed at any time since they purchased or occupied a property, when such views or sunlight' are from the primary living area or active use area and have subsequently been unreasonably obstructed by the growth of trees. In order to establish such rights pursuant to this Chapter, the person must follow the process established in this Chapter. In addition to the above rights, private parties have the right to seek remedial action for imminent danger caused by trees. All persons are advised that the alteration, removal, and planting of certain trees requires a permit under Chapter 15A of the Tiburon Town Code (Trees). The applicability of Chapter 15A should be determined prior to any action on trees. Section 15-4. Unreasonable Obstruction Prohibited. (a) No person shall plant, maintain, or permit to grow any tree which unreasonably obstructs the view from, or sunlight reaching, the primary living area or active use area of any other parcel of property within the Town of Tiburon. 6 (b) Because the maintenance of views and sunlight benefits the general welfare of the entire Town, any unreasonable obstruction of views or sunlight from the primary living area or active use area shall also constitute a public nuisance. Section 15-5. Criteria for Detennininr Unreasonable Obstruction. The following criteria are to be considered (but are not exclusive) in determining whether unreasonable obstruction has occurred: (a) The extent of obstruction of pre-existing views from, or sunlight reaching, the primary living area or active use area of the Complaining Party, both currently and at tree maturity. (b) The quality of the pre-existing views being obstructed, including obstruction of landmarks, vistas, or other unique features. (c) The extent to which the trees interfere with efficient operation of a Complaining Party's pre-existing solar energy systems. (d) The extent to which the Complaining Party's view and/or sunlight lias been diminished over time by factors other than tree growth. Section 15-6. Criteria for Determininr Appropriate Restorative Action. When it has been determined that unreasonable obstruction has occurred, then the following uIiweighted factors shall be considered in determining appropriate restorative action: (a) The hazard posed by a tree or trees to persons or structures on the property of the Complaining Party including, ~ut not limited to, fire danger and the danger of falling limbs or trees. (b) The variety of tree, its projected rate of growth and maintenance requirements. (c) Aesthetic quality of the tree(s), including but not limited to species characteristics, size, groWth, form and vigor. (d) Location with respect to overall appearance, design, or use of the Tree Owner's property. (e) Soil stability provided by the tree(s) considering soil structure, degree of slope and extent of the tree's root sys.tem. 7 (1) . Privacy (visual and a~ditory) and wind screening provided by the tree(s) to the Tree Owner and to neighbors. (g) Energy conservation and or climate control provided by the tree(s). (h) Wildlife habitat provided by the tree(s). (i) 'Yhether trees are "Protected Trees"'- as defined herein. Section 15-7. 'I)pes of Restorative Action. Restorative actions include but are not limited to the following: trimming thinning or windowing topping removal with replacement plantings removal without replacement plantings In all cases, the documentable' extent of view or sunlight existing at any time during the tenure of the present owner or legal occupant is the maximum limit of Restorative Action which may be required. Restorative Action may include written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest. Where removal is required, replacement by appropriate species should be considered. In cases where trimming, wind9wing, or other .Restorative Action may affect the health of a tree which is to be preserved, such actions should be carried out in accordance with standards established by the International Society of Arboriculture for use in the State of California. Section 15-8. Town Guidelines Concemine Restorative Action. The Town of Tiburon provides the following general guidelines concerning restorative actions: Undesirable Trees. By reason of their tall height at maturity, rapid growth, dense foliage, shallow root structure, flammability, breakability, or invasiveness, certain types of trees have been deemed "undesirable" by the Town, including Blue Gum Eucalyptus, Coast Redwood, Monterey Pine, Monterey Cypress trees, or any other tree which generally grows more than 3 feet per year in height and is capable of reaching a height of over 35 feet 8 at maturity. When considering restorative action for "undesirable" trees, aggressive action is preferred. Protected Trees. The Town of Tiburon has designated certain trees to be "protected trees", defined in Section 15-2. Any alteration or removal of protected trees will require a permit from the Town's Planning Director pursuant to Chapter 15A of the Tiburon Town Code. Stump Growth. Stump growth generally results in the hazard of weak limbs, and its protection is not desirable. When considering restorative action for stump gr-owth, aggressive action is preferred. Restorative action which will result in future stump growth Should be avoided. Trimmine. Trimming is the most minor fonD of physical restorative action. This option is recommended when minor unreasonable obstruction has occurred, provided that ongoing maintenance is guaranteed. Thinnine or Windowine. When simple trimming will not resolve the unreasonable obstruction, thinning or windowing may be necessary. These should be supervised by a certified arborist. Toppine. Topping as a restorative action should be used with caution. Topping can have deleterious effects on a tree's health, appearance, and cost of maintenance. Topping frequently results in stump growth. Tree removal, with replacement plantings, may be a preferable alternative. Removal. Tree removal may be required where such removal is essential to preserve. pre-existing views or sunlight. While normally considered a drastic measure, tree removal can be the preferred solution in many circumstances. Maintenance. Ongoing tree maintenance requirements are strongly recommended as part of Restorative Action in order to achieve lasting preservation of pre-existing views or sunlight. Permanence. Conditions of Restorative Action should be recorded and run with the iand to help guarantee permanent preservation of pre-existing views and sunlight. Section 15-9. Process for Resolution of Obstruction DisDutes. The following process shall be used in the resolution of view and sunlight obstruction disputes between parties.' . 9 1. Initial Reconciliation: A Complaining Party who believes that tree growth on the property of another has caused unreasonable obstruction of views or sunlight from the primary living area or active use area shall notify the Tree Owner in writing of such concerns. The notification should, if possible, be accompanied by personal discussions to enable the Complaining Party and Tree Owner to attempt to reach a mutually agreeable solution. If personal discussions fail, neighborhood associations may be willing to assist with the resolution of the obstruction dispute. For trees located on Town-owned property, see Section 15:-16. 2. Mediation: If the initial reconciliation attempt fails; the Complaining Party shall propose mediation 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 professionally trained mediator be employed. . The County of Marin provides professional Mediation Services at a nominal cost. The mediation meeting may be informal. The mediation process may include the hearing of viewpoints of lay or expert witnesses, and shall include a site visit to the properties of the Complaining Party and the Tree Owner. Parties are encouraged 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 Restorative Action, but shall strive to enable the parties to resolve their dispute by written 'agreement in order to eliminate the need for binding arbitration or litigation. 10 Section 15-10. Tree Claim Preparation. In the event that the Initial ReconcIliation process fails, and mediation either is declined by the Tree Owner or fails, the Complaining Party must prepare a Tree Claim, and provide a copy to the Tree Owner, in order to pursue either binding arbitration or litigation under the authority established by 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 corroborating physical evidence~ Evidence may include, but is not limited to photographic prints, negatives or slides. Such evidence must show absence of the obstruction at. any documentable time during the tenure of the Complaining Party. Evidence to show the date of property acquisition or occupancy by the Complaining Party must be included. (b) The location of all trees ~lleged to cause the obstruction,' the address of the property upon which the tree(s) are located, and the p'resent tree owner's name and address. (c) Evidence of the failure of initi~l reconciliation, as described in Section 15-9, to resolve the dispute. The Complaining Party must provide physical evidence that written attempts at reconciliation have been made and have failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence. (d) Evidence that mediation, as described in Section 15-9, has been attempted and has failed, or has been declined by the Tree Owner. (e) Specific r~storative actions proposed by the Complaining Party to resolve the unreasonable obstI1lctioll,. Section 15-11. Hineline Arbitration. In those cases where the initial reconciliation process fails and where mediation is declined by the Tree Owner or has failed, the Complaining Party must offer in writing to submit the dispute to binding arbitration, and the Tree Owner may elect binding arbitration. The Tree Owner s~all have 30 days from service of notice to accept or reject binding arbitration. If accepted, the parties shall agree on. a specific Arbitrator within 21 days, and shall indicate such agreement in writing. 11 The Arbitrator shall use the provisions of this Chapter to reach a fair resolution of the Tree Claim and shall submit ~ complete written report to the Complaining Party and the Tree Owner. This report shall include the Arbitrator's findings with respect to Sections 15-5 and 15-6 of this Chapter, 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 Town Attorney upon completion. Any decision of the Arbitrator shall be enforceable pursuant to the provisions of Code of Civil Procedure Section 1280 rt.Eg. Section 15-12. Litieation. In those cases where binding arbitration is .declined by the Tree Owner, then civil action may be pursued by the Complaining Party for resolution of the view or sunlight obstruction dispute under the rights and provisions of this Chapter. The litigant must state in the lawsuit that arbitration was offered and not accepted, and that a copy of the lawsuit was filed with the Town Attorney. A copy of any order or settlement in the lawsuit shall also be filed with the Town Attorney. Section 15-13. ApJlOrtionment o'f Costs. Cost of Mediation and Arbitration: The Complaining Party and Tree Owner shall each pay 50% of Mediation or Arbitration fees, unless they agree otherwise or allow the Mediator or Arbitrator discretion for allocating costs. Cost of Litieation: To be determined by the Court or through a settlement. Cost of Restorative Action: To be determined by mutual agreement, or through mediation, arbitration, court judgment, or settlement. Section 15-14. Liabilities. The issuance 'of mediation findings, an arbitration report or 'a court decision shall not create any liability of the To~ with regard to the Restorative Actions to be performed. Failure of the Town to enforce provisions of this Chapter shall not give rise to any civil or criminal liabilities on the part of the Town. 12 Section 15-15. Limitations. It is not the intent of the Town in adopting this Chapter to. affect obligations imposed by an existing easement or a valid pre-existing covenant or agreement. Section 15-16. Tress on Town-owned Property. Tress -located on Town-owned property are exempt from the provisions of. this Chapter. Requests or complaints regarding trees located on Town-owned property should be made in writing to the Superintendent of Public Works for consideration in accordance with policies adopted by the Town. 13 Section 4. Chapter 15A of the TIburon MuniciOal Code Added. A new Chapter 15A entitled "trees" .is hereby added to the Tiburon Municipal Code to read as follows: CHAPTER 15A: TREES Section 15A-1:' Purpose and Policy. Section 15A-2: Definitions. Section 15A-3: When a Permit is Required. Section 15A-4: Exceptions. from Permit Requirement.' Section 15A-5: Application Filing and Procedure. Section 15A-6: Application Review Procedure.. Section 15A-7: Permit Issuance. Section 15A-8: Appeal. Section 15A-9: Termination of Permit.' Section 15A-10: Violation/Penalty . Section 15A-1. Purpose and policy. 14 Th,e Tiburon General Plan recognizes the importance of trees to the character and beauty of the Town, and recognizes the role that trees have in advancing the public health, safety and welfare. The Town has therefore determined that reasonable regulation of the removal, alteration,. and planting of certain trees is necessary to promote the public health, safety and general welfare of the community. Regulation of trees is based upon the following general policies. Policy #1: The Town recognizes the scenic importance and privacy-c~eating benefits of trees to the cQmmunity. The Town also recognizes that trees can provide soil stability, noise buffering, and wind .protection benefits, and can help prevent erosion and debris flow landslides on the hilly terrain which characterizes most of Tiburon. The Town of Tiburon greatly values its trees for their ecological importance, visual enhancement of the community, and their contribution to residential privacy and quietness. Policy #2: The Town recognizes the special significance of "protected trees" (heritage trees, oak trees, and dedicated trees), and values the contribution which such trees make to the beauty and quality of life of Tiburon. Policy #3: The Town recognizes that certain types of trees, because of potential breakage and fire hazards, or their potential for creating view blockage due to rapid growth and tall height at maturity, should be prohibited from being planted without special permission. These trees are referred to as "undesirable trees". Policy #4: The Town recognizes that because of the known benefits of trees, undeveloped properties and properties capable of further subdivision should be protected from unregulated removal of trees prior to the approval of development plans. Trees on such properties should be preserved so that they may be considered for incorporation into development plans. Policy #5: The Town recognizes that residents. in single family and two-family zones should have the freedom to determine the nature of their private landscaped surroundings. In such zones, only th~ removal or alteration of "protected trees" and the planting of "undesirable trees" shall require permits. Policy #6: The Town recognizes that properties located in zones other than single family' and two-family residential zones often have special landscaping circumstances, including commonly-owned or shared areas, and these special circumstances have the potential to affect significantly larger numbers of persons and properties if unregulated. Because of the potential for special landscaping circumstances, such properties require careful regulation. Therefore, all trees on such properties should be subject to reasonable regulation through the permit process. 15 Section 15A-2. Definitions. For purposes of this Chapter, the following words and phrases shall have the meanings ascribed to them: -Alteration- means any action which would significantly damage the health or appearance of any tree, whether by: 1. Cutting of its trunk or branches; 2. Filling or surfacing or changing the the soil within the drip-line of the tree; or drainage of 3. Performing other damaging acts. This definition does not include routine pruning and shaping, removal of dead wood, or other maintenance of a tree to improve its health, facilitate its growth or maintain its configuration to protect an existing view. -Design Review Board- means the Tiburon Design Review Board or its successor. "Person- means any individual,' corporation, partnership, firm, or other legal entity, including the Town. "Planning Director" means the Planning Director of the Town or his designee. "Planting" means the intentional installation or placement of a tree. "Property" means any land or area within the corporate limits of the Town of Tiburon which is subject to its regulatory authority. "Protected Tree- means any: 1. Heritaee tree, meaning any tree which has a trunk with a circumference exceeding sixty (60) inches, measured' twenty-four (24) inches above the ground level. 2. Oak tree, including coast live oak, blue oak, California black oak, interior live oak, canyon live oak, Engelmann oak, or valley oak tree. 3. Dedicated tree, meaning a tree of special significance so designated by 'resolution of the Town Council. 16 "Removal. means the elimination, movement, or taking away of any tree from its present location. .Shrub. means a woody perennial plant smaller than a tree, usually having permanent stems branching from or near the ground. .SingIe family residential zone. means any property located in a zone for which the principal use is detached single family residential. Typically, this means the R-l, R-I-BA, RO, or RPD zone as shown on the Tiburon Zoning Map. -Town property" means any property owned in fee by the Town of Tiburon, or any easements, rights-of-way, or other similar interests of the Town in property. -Tree. means: 1. A woody perennial plant which has a trunk circumference of twenty (20) inches measured at twenty-four (24) inches above ground; or 2. A woody perennial plant at least fifteen (15) feet in height which usually, but not necessarily, has a single trunk. References to "tree" shall include the plural. The Planning Director or his designee shall have reasonable discretion to distinguish between a "tree" and a "shrub" within the confines of the definitions found in this Chapter. -Two-family residential zone. means a property located in a zone for which the principal use is two-family or duplex residential. Typically, this means the R-2 zone as shown on the Tiburon Zoning Map. "UndeSirable tree. means a Blue Gum Eucalyptus, Monterey Pine; Monterey Cypress, Coast Redwood, or any other tree which generally grows more than 3 feet per year in height and is capable of reaching a height of over 35 feet at maturity., .Undeveloped property" means any property which: 1. Is not improved with a primary building (for example, a dwelling unit or place of business); or 17 2. Is improved with a primary building, but is of sufficient land area that it could be subdivided. Subdivision potential shall be based upon the minimum lot area requirement for the zone in which the property is located. (Refer to Tiburon Zoning Ordinance for minimum lot areas in each zone). Section 15A-3. When a Permit is Required. The planting, removal, or alteration of the folloWing trees is regulated by this Chapter and shall require a permit: Protected Tree: Removal or alteration of any "protected tree" on any property is prohibited without the prior issuance of a permit. Undesirable Tree: Planting of any "undesirable tree" on any property is prohibited without the prior issuance of a permit. Town Property: Planting, removal, or alteration of any tree on "Town property" is prohibited without the prior issuance of a permit, except that in cases of Town action on Town property, only the removal or alteration of a "protected tree" or the planting of an "undesirable tree" shall require a permit. Undeveloped Property: Removal or alteration of any tree on "undeveloped property", including property which could be subdivided, is prohibited without the prior issuance of a permit. Sinele Family or Two-Family Residential Zones: Removal or alteration of any "protected tree" or the planting of any "undesirable tree" is prohibited without the prior issuance of a permit. All other zones: Removal or alteration of any tree located in a zone other than a "single family residential zone" or a "two-family residential zone" is prohibited without the prior issuance of a permit. Section 15A-4. Exceptions from Permit Req~ment. A permit shall not be required under this Chapter if the planting, alteration, or removal of a tree has been authorized by a zoning, subdivision, or other valid permit issued by the Town. The burden shall be on the applicant to demonstrate such approval. If personal injury or property damage is imminently threatened, or the Fire Marshal declares a tree to be a fire hazard, the Chief of Police, Superintendent of Public Works, Planning Director, or 'Town Manager may 18 authorize or order the removal or alteration of a tree without compliance with other provisions of this Chapter. The removal or alteration carried out in such emergency conditions shall be reported to the Planning Director on the first business day following the work. Section 15A-5. Application Filing and Procedure. Any person wishing to plant, remove, or alter a tree regulated by this Chapter shall apply in writing to the Planning Director for a permit. Application forms are available in the Planning Department. The fee for such application shall be established by resolution of the Town Council. Applications filed with the Planning Director shall: a. Identify the property on which the tree is located. b. Provide a perimeter outline of any existing or proposed buildings on the property. c. Specify the location of the tree within reasonable accuracy to facilitate easy identification. d. State the species of the tree, the approximate height of the tree (currently and at eventual maturity), and the circumference of the trunk measured at twenty "four inches above the ground surface. e. Furnish a statement ~f the reason for the request. f. ' Provide evidence, in writing, of property owner permission. The Planning Director may require additional information to secure the purposes of this Chapter, including a report by a certified arborist satisfactory to the Town, when reasonably necessary to a final determination. The cost of any such report or additional information shall be responsibility of the applicant. Section 15A-6. Application Review Procedure. Once the Planning Director determines that the application is complete, he should cause to be mailed "courtesy" notices to all owners of property, as listed on the available County Assessment rolls, within 300 feet of the subject property, and to residents and other parties which in the discretion of the Director, may be significantly affected. The notice should briefly describe the proposed work to be performed. Courtesy notices should be mailed at least ten (10) days prior to a decision by the Director. On applications for planting an undesirable tree, the Planning Director shall within 15 days inspect the site and shall consider the following factors in deciding whether, in the exercise of his discretion, to issue or deny the permit: a. The suitability of the loc~tion for the tree requested to be planted. 19 b. The potential for unreasonable or undesirable View blockage by the tree at maturity. On applications for the' alteration or removal. of trees, the Planning Director shall wit~in 15 days inspect the trees and the site. The Director shall then consider the following factors in deciding whether, in the exercise of his discretion, to issue or deny the permit: a. The condition of the tree with respect to disease, h~ard, proximity to existing or proposed structures or interference with utility services. b. The necessity of removal or alteration of the tree in order to develop the property. c.. The topography of the land and the effect of tree removal or alteration on protection from wind, soil erosion or increased flow of surface water. d: The number of trees -in the neighborhood, and the effect of removal or alteration of the tree on the character of the neighborhood, including privacy impacts on neighboring properties. e. Good forestry practices; i.e. the number of healthy trees that a given property will support. f. The historical significance and age of the tree. Section 15A-7. Permit Issuance. The Planning Director may issue the permit upon finding that it would be consistent with the purposes, policies, and regulations set forth in this Chapter. The Planning Director may attach such conditions to the permit. as deemed necessary, in the exercise of his discretion, to accomplish the purposes of this Chapter. Such conditions may include, but are not limited to, regulation of planting, cutting, grading, drainage, irrigation, encroachment into drip-line areas, paving and surfacing limitations, maintenance of trees at a maximum height, and erection of protective fencing. Replacement of removed trees, on a basis of up to 3 to 1, may also be required as a condition of approval. Where appropriate, any conditions attached to a permit shall run with the land and apply to permittee's successors in interest. The Planning Director may direct that any permit shall be recorded with the Marin County Recorder. 20 Section 15A-8. Appeal The decision of the Planning Director may be appealed to the Design Review Board. A Written appeal must be filed with the Planning Department within ten (10) days of the decision. No permit granted under the provisions of this Chapter shall be effective until the expiration of ten, (10) days following the granting of such permit. If an appeal is filed, action under any permit shall be suspended pending the outcome of the appeal. ' The Design Review Board shall hear the appeal within thirty (30) days of its filing. Notice of the time and place of the appeal hearing shall be given to the applicant, appellant, and other persons as deemed appropriate by the Planning Director. The Design Review Board may affirm, reverse, or modify the decision of the Planning Director. The decision of the Board shall be final. Section 15A-9. Termination of Permit. Unless a longer time is set forth in the permit, a permit shall be valid for only 180 days from final approval, and thereafter shall become null and void. For good cause, time extensions may be granted in writing by the Planning Director. Section 15A-I0. ViolationjPenalty. A. Planting or refusing' to remove a tree planted in violation of this Chapter is hereby declared to be a public nuisance, and the Town Attorney, on direction of the Town Council, shall initiate necessary proceedings for abatement of the nuisance in 'a manner provided by civil law. B. Any person' who alters, removes, or maintains a tree in violation of this Chapter, or who violates the conditions of any permit granted under this Chapter, is guilty of a misdemeanor and upon conviction shall be subject to a fine not exceeding $1000.00 for each violation, or the maximum amount allowed by Government Code Section 36901, whichever is greater. Each tree altered, removed, or maintained in violation of this Chapter shall be considered' a separate violation. 21 Section 5. Separability. Should any part or provision of this Ordinance be declared by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect t~e validity of this Ordinance as a whole, or any part thereof except that part or provision so declared, invalid or unconstitutional. Section '- Effective Date. This Ordinance is to take effect and be in force at the expiration of thirty (30) days from and after its passage, and before the expiration of fifteen (15) days after its passage, the same, or its legally required equivalent, shall be published with the names of the members voting for and against the same at least once in a newspaper of' general circulation published in the Town of Tiburon. . PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on December 3, 1991, by the following vote: AYES: COUNCILMEMBERS: Coxhead,Logan,Thayer NOES: COUNCILMEMBERS: Friedman. ABSENT: COUNCILMEMBERS: None ATTEST: ~~~ THERESE . HENNESS , TOWN CLERK 22