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HomeMy WebLinkAboutTC Ord 1980-12-03 ORDINANCE NO. 235 N.$. AN ORDINANCE OF THE TOWN OF TIBURON AMENDING ARTICLE III OF TITLE IV, CHAPTER 15, OF THE TIBURON MUNICIPAL CODE BY REVISING THE HEARING PROCEDURES CONTAINED HEREIN BE IT ORDAINED by the Town Council of the Town of Tiburon, as follows: Section 1. Amendment. Sections 15-18 through 15-26 of the Tiburon Municipal Code are hereby amended to read as follows: Section 15-18. Purpose. The General Plan of the Town recognizes the contribution of trees, views and available sunlight to the character and beauty of the Town. Views are important to residents and visitors and the enjoyment and value of property herein. Removal of trees without reasonable care would destroy the natural beauty of certain areas, contribute to erosion and increase cost of drain- age systems and impair residential privacy. When disputes arise over trees, neighbors are expected to make every reasonable effort to come to an amicable agreement among themselves. However, when all reasonable efforts have failed to produce an agreement, the Town needs guidelines to deal with such disputes between neighbors and to protect both trees and views. For such reasons, the Town Council enacts these regulations.to promote the public health, safety, and welfare. Section 15-19. Definitions. Person: Any individual, firm, partnership, corporation, or other legal entity. Tree Owner: The record owner of the real property on which the subject tree is located. Complainant: The complaining property owner who files a written report with the Town. Tree: A woody perennial plant which usually, but not necessa~ily, has a single trunk and a height of fifteen (15) feet or more, or has a circumference of 20" measured at 24" above the ground; references herein to "tree" shall include the plural. Alteration: Any action which would significantly damage the health or appearance of any tree, whether (1) by cutting of its trunk or branches, or (2) by filling or surfacing or changing the drainage of the soil around the tree, or (3) by other damaging acts; this definition excludes routine pruning and shaping, removal of dead wood, or onher maintenance of a tree to improve it health, facilitate its growth, or maintain its configuration to protect an existing view. -2- Hedge: Any plant material, trees, stump growth, or shrubbery planted or growing in a dense continuous line so as to form a thicket, barrier or living fence. (See Ordinance No.9 N.S., Section 12 C, for regulations pertaining to hedges.) View: A vista of San Francisco Bay, bay area cities and communities or surrounding hills from the primary living and entertainment areas of the home. Heritage Tree: A tree which has a trunk with a circumference exceeding seventy-five (75") inches, measured twenty-four (24") inches above the ground level, or a tree which has special significance as provided Lor~~by Resolution of the Town Council. Section 15-20. Complaint. A property owner who desires to take adva~tage of the provisions of this article shall file with the Town Clerk a written report stating with particularity the manner in which the view from his property or sunlight reaching his property is being unreasonably obstructed by the growth of one or more trees on property other than his, and the specifics of his efforts to alleviate the problem including contacts with the tree owner and the appropriate homeowners association(s) in the area, and that these efforts have not been successful. He shall deposit with the Town Clerk a non-refundable fee, in an amount to be established by Resolution of the Town Council, to cover the administrative costs as pre- scribed by the Board of Adjustments and Review and the Planning Commission. In addition, the complainant shall depesit with the Town Clerk, in an amount to be established by Resolution of the Town Council, an advance, which shall be refunded in any amount not used, against the consulting expenses incurred by the Town under provisions of this Ordinance (for landscape architect, tree surgeon, or other consultant), and shall agree in writing to pay in full the reasonable amount of any such expenses, even if such expenses exceed the amount of the advance. ~ Section 15-21. Notification of Hearing. The Board of Adjustments and Review shall schedule a hearing on the report within sixty (60) days after it is filed with the Town by the complainant. The Director of Community Development shall give at least ten (10) days notice of the hearing by certified mail, return receipt requested, to the tree owner, as shown on the last equalized tax roll of the County of Marin, and the complainant, and shall give.at least ten (10) days notice of the hearing by mailing postcards to such other property owners as in his discretion might be materially affected, using the ownerships, names and addresses from the last adopted tax roll. The notice shall stated the name of the complainant, the name of the tree owner, the tree's location, and the time and place of the hearing, and shall request written comments prior to the hearing. The hearing shall only proceed following proof that the tree owner has received notice as provided herein. The failure of any other property owner to receive the notice shall not invalidate the proceedings -3- Section 15-22. Hearing and Findings of the Board~ At the hearing, each party or his counsel may present such evidence as he deems necessary. The hearing may be continued from time to time for good cause, within the discretion of the Board. Prior to rendering a decision in favor of the complainant, the Board shall find all of the following facts to be true: (a) That the view from or the sunlight reaching the real property of the complainant is unreasonably obstructed; and (b) That such obstruction materially decreases the enjoyment of the real property of the complainant; and (c) That correction of the obstruction in the manner to be determined by the Board will not materially decrease the enjoyment of the real property of the tree owner. Section 15-23. Decision of the Board. Following the hearing, the Board shall render its decision and shall so advise the parties, in writing. It shall, in its decision, determine the specific manner in which the obstruction is to be corrected, that is, by topping, trimming, etc., or in cases in which no other reasonable remedy exists, by removal. The decision shall include the Board's finding as to the manner in which the view or sunlight of the complainant is obstructed. The decision of the Board shall not become final until the expiration of the appeal period, as defined in Section 15-25 herein. Section 15-24. Work of Correction and Allocation of Costs. Within fifteen (15) days after the expiration of the appeal period, the tree owner will obstain at least two bids from bona fide tree service companies to have the prescribed work done, and shall present all bids to the complainant. Within 15 days after presentation of the bids, the complainant will deposit with the tree owner an amount equal to the percentage of the lowest bid deemed appropriate by the Board, under sub-paragraphs (a), (b), and (c) of this section. The tree owner will, at his sole discretion, choose the company by which he wishes the work done and shall order the work done within thirty (30) days after receiving the complainant's deposit. The tree owner shall pay the difference between the deposit amount and the bid amount of the company he has chosen. The authorized work of correction shall be done by a licensed tree service under the sole direction and contvol of the tree owner. However, nothing in this section shall prohibit the tree owner from doing the work himself. The complainant shall pay the entire lowest bid amount of the authorized correction, unless the Board makes an express finding that: -4- (a) Removal of the tree will materially increase the enjoyment of the tree owner, in which case the owner may be required to pay up to fifty (50%) percent of the cost; the actual percentage to be determined by the Board; or (b) The tree constitutes a hazard to the safety of the complainant or his property, and is being maintained by the tree owner in disregard for the safety of others, in which case the tree owner may be required to pay up to one hundred percent (100%) of the cost of correction, the actual percentage to be determined by the Board, including reimbursement of the complainant's filing fee. (c) There has been disregard for a neighbor's view and or severe sunlight obstruction to a neighbor's property: 1. A view obstruction or severe sunlight obstruction neighbor's property already existed when the complainant took possession of the dwelling but, at a later date the tree owner has disregarded the view and/or severe sunlight obstruction to neighbor's properties by allowing the tree to grow to such a height as to obstruct their views and/or cause severe sunlight obstruction to neighbor's properties, in which case the tree owner may be required to pay up to 100% of the cost of correcting the view obstruction or severe sunlight obstruction; the actual percentage to be determined by the Board. The Town shall not be required to pay for improvements of the view . from any private property unless so determined by the Town Council. Section 15-25. ~EEeal and Remedies. Any party adversely .affected by the decision of the Board may file a writcen notice of appeal with the Town Clerk within ten (10) days after the decision of the Board. Unless otherwise provided by Resolution of the Town Council to the contrary, the Town Council shall thereupon fix a time and place for hearing the appeal within sixty (60) days of the written notice of appeal, and shall give at least ten (10) days notice of the hearing to all parties that received notice pursuant to Section 15-21. The Council Council shall hear such evidence as the parties may present and shall consider the findings and decision of the Board. The Town Council, whose decision shall be final, shall have the right to affirm, reverse, or modify the decision of the Board and shall have the right to continue the hearing from time to time for good cuase. The tree owner shall be required to comply with any correction{s) prescribed by the Board or Council no later than ninety (90) days following expiration of the appeal period or the date of final determination of the Council in the event of an appeal. Thereafter, the continue maintenance of the tree without such correction(s), or without compliance with such other action as -5- may have been prescribed by the Board or Council shall constitute a violation hereof and declared a public nuisance which may be enjoined or abated as provided by law. Section 15-26. Pruning. The Board may direct that the pruning it has specified be maintained within reasonable limits. The tree owner shall have the sole responsibility of maintaining the trees at such height as may be decided upon by the Board. Failure to comply with the direction of decision of the Baord made pursuant to the provisions of this section shall constitute a public nusiance which may be enjoined or abated as provided by law. Section 15-27. Removal of Heritage or Oak Trees Prohibited. Planting of Certain Trees Prohibited. Removal of a heritage tree or oak tree on private property in the Town without the prior issuance of a permit as provided herein is prohibited. The planting within the Town of any Monterey Pine, Monterey Cypress, Coast Redwood or Blue Gum Eucalyptus without a permit issued as provided herein is prohibited. Section 15-28. Permit. Any person who wishes to remove or alter a heritage or remove an oak tree or plant a prohibited species of a tree on private property in the Town may apply in writing to the Town of Tiburon Department of Community Development for a permit to do so. However, if the Board specifically approves planting of prohibited trees or removal of a heritage or oak tree on a particular site, no permit will be necessary. Such application shall indentify the property on which the tree is located, or to be planted; provide a perimeter outline of any existing or proposes building on the property, specify the location of the tree within an accuracy of one (1') foot, state the size and species of the tree, and furnish a brief statement of the reason for the request, along with such information as the Director of Community Development or his designee may require. The Director of Community Development or his designee shall inspect the tree and the site, or the site of the proposed planting, and shall consider the following factors in deciding whether to issue or deny the permit: (a) The condition of the tree with respect to disease, hazard, proximity to existing or proposed structures or interference with utility services; (b) The necessity of removal, alteration, or planting of the tree in order to improve the property; (c) The topography of the land and the effect of tree removal, alteration, or planting on protection from wind, soil erosion or increased flow of surface water; -6- (d) The protection of privacy for the property on which the tree is located or for adjacent property; (e) The protection or restoration of a view from the property on which the tree is located or from adjacent property. (f) The number of trees in the neighborhood, and the effect of tree removal, alteration or planting on the property values and characteristics of the neighborhood. A permit shall be issued by the Director of Community Development or his designee upon finding that an existing tree is of such size, type, condition and location that its removal or alteration or, in the case of a proposed planting, that the planting will be consistent with the purposes set forth in Section 15-18. The Director of Community Development or his designee may attach such conditions to the permit as it deems necessary to accomplish the purposes of this Ordinance, including a protection of the tree by grading, drainage and cut and fill restrictions, or substitution of another tree or shrub. The Applicant shall post at once a copy of the permit at the property in a location where it may be read from the street or sidewalk. Section 2. Separability. If any section, sentence, subsection, clause or phrase of this Ordinance is for any reason held to be in~alid 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 of phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. Section 2. Effective Date. This ordinance shall take effect and be in force thirty (30) days after the date of passage and before the expiration of fifteen (15) days after its passage, the same 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 held on December 3 , 1980, by the following vote: AYE S : NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: Edelstein, Bergsund, Hanson, Rockey, Bass None None ~ ~~~R~ Town ~ -7- ATTEST: 2/;' - ~ ,., ,"" -,-,.- //~~'f1 " .". / I . . /, '. /". - ,/ --? v'<' 1/ ,/.,' ( / . /'~~/ R.L. KL ERT, TOWN MANA R CLERK Revised Draft: 12/3/80