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Home My WebLink AboutTC Ord 2017-05-03 ORDINANCE NO. 572 N. S. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON AMENDING PROVISIONS OF TITLE IV, CHAPTER 15 OF THE TIBURON MUNICIPAL CODE (VIEW AND SUNLIGHT OBSTRUCTION FROM TREES) The Town Council of the Town of Tiburon does ordain as follows: Section 1. Findings. A. The Town Council adopted its current View and Sunlight Obstruction from Trees regulations in 1991, codified as Title IV, Chapter 15 of the Municipal Code. B. The Town Council has received information that the binding arbitration provisions set forth in Chapter 15 could result in unintended cost and other ramifications that detract from their intended purpose as originally set forth in the regulations, and the purpose of this amending ordinance is to remove the arbitration provisions from Chapter 15 of the Tiburon Municipal Code. Additional amendments are proposed to the mediation provisions, to certain definitions, and to various sections related to the arbitration provisions being removed. C. The Town Council held a public hearing on May 3, 2017 and has heard and considered any and all public testimony on this matter. D. The Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed. E. The Town Council finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare, and that the amendments will have no deleterious effect on future use of the regulations for their intended purposes. F. The Town Council has found that the amendments made by this Ordinance are consistent with the goals and policies of the Tiburon General Plan and other adopted ordinances and regulations of the Town of Tiburon. G. The Town Council finds that adoption of this ordinance is statutorily exempt from the requirements of the California Environmental Quality Act(CEQA)pursuant to Section 15378 of the CEQA Guidelines in that it does not constitute a project under CEQA, and if it were found to constitute a project, it would be exempt pursuant to the general rule set forth in CEQA Guidelines Section 15061(b)(3). Town of Tiburon Ordinance No. 572 N.S. Effective 06/16/2017 Page 1 Section 2. Adoption of Amendments to the Tiburon Municipal Code. Title IV, Chapter 15 of the Tiburon Municipal Code is amended as follows: A. Section 15-11 of the Tiburon Municipal Code is hereby deleted. B. In Section 15-2 [Definitions], the definitions for"Arbitrator" and"Binding arbitration" are hereby deleted. C. In Section 15-2 [Definitions], the definition for"Oak tree" is modified to read as follows: "Oak tree," means any type of oak tree, including but not limited to coast live oak, blue oak, California black oak, interior live oak, canyon live oak, Engelmann oak or valley oak tree. D. In Section 15-2 [Definitions],the definition for"Tree claim" is modified to read as follows: "Tree claim" means the written basis for court action under the provisions of this chapter. E. Section 15-8(a) is modified to read as follows: 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, Canary Pine, Monterey Cypress trees, or any other tree which generally grows more than three feet per year in height and is capable of reaching a height of over thirty-five feet at maturity. When considering restorative action for "undesirable" trees, aggressive action is preferred. F. Section 15-9(b) is hereby amended to read as follows: (b) (1) Mediation. If the initial reconciliation attempt fails, the complaining party shall propose mediation as a timely means to settle the obstruction dispute. (2) Acceptance of mediation by the tree owner shall be voluntary, but the tree owner shall have no more than thirty (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 twenty (20) days of the acceptance of mediation, or the offer of mediation shall be deemed to have been declined. (3) It is recommended that the services of a professionally trained mediator be employed. (4) The mediation meeting may be informal. The mediation process may Town of Tiburon Ordinance No. 572 N.S Effective 06/16/2017 Page 2 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. (5) 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 reduce the potential for litigation. The mediation shall be completed within sixty (60) days following mutual agreement upon the choice of mediator, unless extended by mutual consent of the parties, or the mediation shall be deemed to have failed. G. Section 15-9(b)(5) is hereby amended to read as follows: (5) 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 reduce the potential for litigation. H. Section 15-10(a) is hereby amended to read as follows: (a) In the event that the initial reconciliation process fails, and mediation is either 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 litigation under the authority established by this chapter. I. Section 15-12 is hereby amended to read as follows: (a) In those cases where the initial reconciliation process fails, and mediation is either declined by the tree owner or fails, 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. (b) The litigant must state in the lawsuit that initial reconciliation failed and that mediation was either declined by the tree owner or failed, 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. J. Section 15-13 is hereby amended to read as follows: (a) Cost of mediation. The complaining party and tree owner shall each pay fifty percent of mediation fees, unless they agree otherwise or allow the mediator discretion for allocating costs. Town of Tiburon Ordinance No. 572 N.S. Effective 06/16/2017 Page 3 (b) Cost of litigation. To be determined by the court or through a settlement. (c) Cost of restorative action. To be determined by mutual agreement or court order. K. Section 15-14 is hereby amended to read as follows: (a) The issuance of mediation findings or a court decision shall not create any liability of the town with regard to the restorative actions to be performed. (b) 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. Section 3. Severability. If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases may be declared invalid or unconstitutional. Section 4. Effective Date. This ordinance shall be in full force and effect thirty (30) days after the date of adoption. Pursuant to the provisions of the California Government Code, a summary of this ordinance shall be prepared by the Town Attorney. At least five (5) days prior to the Town Council meeting at which adoption of the ordinance is scheduled, the Town Clerk shall (1) publish the summary in a newspaper of general circulation in the Town of Tiburon, and (2) post in the office of the Town Clerk a certified copy of this ordinance. Within fifteen(15) days after the adoption of this ordinance, the Town Clerk shall (1) publish the summary in a newspaper of general circulation in the Town of Tiburon, and (2) post in the office of the Town Clerk a certified copy of the ordinance along with the names of those Council members voting for and against the ordinance. This ordinance was read and introduced at a regular meeting of the Town Council of the Town of Tiburon, held on May 3, 2017, and was adopted at a regular meeting of the Town Council of the Town of Tiburon, held on May 17, 2017, by the following vote: AYES: COUNCILMEMBERS: Doyle, Fraser, Fredericks, O'Donnell, Tollini Town of Tiburon Ordinance No. 572 N.S. Effective 06/16/2017 Page 4 NAYS: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None r JIM FS ;MAYOR TOWN +; TIBURON ATTEST: LEA STEFANI, TOWN CLERK Town of Tiburon Ordinance No. 572 N.S. Effective 0611612017 Page 5