PURPOSE:

At the City Council meeting of October 25, 2005, staff was directed to proceed with the second phase of the view protection ordinance.  The first phase was completed in May 2005 as part of the amendments to the single family development standards.  This report seeks direction on view protection options, relating specifically to vegetation that may be included in this second phase of the view ordinance. 

BACKGROUND:

In July 2003, the City Council directed staff to proceed with a consultant-assisted study to consider options for adopting a view protection ordinance to preserve and protect scenic views in the hillside area of the City.  This was driven by input received in prior years from hillside residents that some City action was needed to protect scenic hillside views. 

Hillside Development Standards

Staff retained the services of Moore, Iacofano, Goltsman (MIG) and their sub-consultant Robert Odland, a view protection expert, to work with the residents of the hillside area and to determine what type of protection was desired and feasible.  Staff and the consultants conducted two community meetings on February 19, 2004 and March 18, 2004.  The purpose of the first meeting was to discuss the current conditions in the Burbank hillside area and to look at the full spectrum of view protection options that hillside residents wished to have considered.  The purpose of the second meeting was to discuss specific view protection options and to gauge residents� level of interest in the options available.  Both community meetings were well attended, with over 90 hillside residents at the first meeting and 65 residents at the second meeting. 

In July 2004, staff returned to the City Council to report on the outcome of the two community meetings.  Based upon the overwhelming support from those who attended the meetings, staff recommended that the Council direct staff to proceed with creating a view protection ordinance.  Although a vocal minority opposed any restrictions on structures or vegetation, most residents at the community meetings expressed support for an ordinance that would protect views from private properties, including the following features:

• Limitations on house sizes

• Design guidelines for hillside homes

• Requirements to reduce the �massive appearance� of homes

• Vegetation height limits

• Mediation process for vegetation disputes

• Vegetation controls for trees and plants on public property (i.e. streets, parks, and public hillside areas)

• City enforcement of private covenants, conditions, and restrictions (CC&Rs) regarding view protection

The above features of a view protection ordinance can generally be divided into three categories: 1) limitations on structures, 2) limitations on vegetation, and 3) specific limitations on view obstruction.  The City Council directed staff to proceed with the creation of a view protection ordinance in three phases using these three general categories as the basis for phasing. 

The first phase, limitations on structures, was completed in conjunction with the revisions to the development standards for the R-1 Single Family Residential zone.  In addition to community meetings held in January and February, 2005 for the revisions to the R-1 standards, staff held a separate meeting on February 16, 2005 with hillside residents to specifically discuss the proposed standards that would be unique to the hillside area.  In May 2005, the City Council adopted the hillside development standards in conjunction with the amended standards for the R-1 zone citywide.  At that time, the City Council defined the hillside area as that area already identified as the Mountain Fire zone.  A map of the area is attached as Exhibit A. 

The hillside development standards alone do not constitute a view protection ordinance.  However, the development standards were created with the assistance of the City�s view protection consultant, and are intended to address those characteristics of a house that most often affect views from neighboring properties.  These include height, setbacks, and house size.  All proposed houses, or modifications thereto, in the hillside area over 3,000 square feet in size or 24 feet in height are required to receive approval of a discretionary hillside development permit before they are issued a building permit.  One of the required findings for approval of a hillside permit is that the proposed house would not unnecessarily or unreasonably encroach upon scenic views from neighboring properties.  All hillside development applicants are required to submit a view study with their permit application documenting how their proposed structure would impact views from neighboring properties.  The Community Development Director (Planning Board or City Council if appealed) may require changes to the design of a proposed project or deny a proposed project if it is determined to unreasonably impact views from neighboring properties. 

Vegetation Controls

At the February 2005 community meeting with hillside residents, many residents expressed disappointment that the hillside development standards did not include controls on vegetation or prescribe a process by which disputes could be remedied.  The hillside standards address structures only.  The hillside standards do not address trees or other vegetation in any way.  Some residents perceived the height and thickness of vegetation to be as much or greater of an issue than structures and expressed their concern that vegetation would go unaddressed.  At the City Council meeting of October 25, 2005, staff was directed by the City Council to proceed with the second phase of the view protection ordinance dealing with vegetation controls.  As with the first phase, staff held an initial community meeting on April 12, 2006 to identify residents� general concerns and present view protection and restoration options for consideration.  The second meeting on June 1, 2006 explored the vegetative control and dispute resolution processes utilized in other communities and sought input on vegetative control options.  These meetings are discussed in greater detail later in this report. 

ANALYSIS:

Before discussing the vegetative protection and restoration methods proposed for use in the City of Burbank, it is useful to look at the methods employed in other communities.  It is important to note that most communities differentiate between private and public trees.  Private trees are located on private property.  All species selection, location, and maintenance decisions are made by the property owner or designee.  Public trees are located on public property.  Trees located in undeveloped hillside areas on City-owned land are of specific note because they are not maintained by the City.  They are allowed to grow and mature in their natural state with no intervention from the City.  Park and street trees are maintained for the purpose of ensuring tree health, public safety, or the provision of public utilities. 

Persons attending the community meetings were provided with information detailing the vegetation controls and dispute resolution processes utilized by other communities.  It should be noted that, while many communities have regulations on structures, far less have regulations as relating to vegetation.  Of those that do, many are of little use for comparative purposes because they contain minimal detail or have vague language.  Useful provisions that are capable of being implemented have been adopted by a very small group of cities. 

Vegetation Controls in Other Cities

Good Neighbor Guides

Several cities have prepared �good neighbor� guides for widespread distribution that discuss the importance of respecting views and not causing vegetation impacts upon your neighbors.  They discuss the importance of consulting with your neighbors first before planting trees and also outline the processes, if any, that the city has adopted for resolving view disputes.  They may further recommend trees that are most appropriate for a specific location or provide advice as to maintenance practices that ensure good tree health. 

Trees on Private Property

The majority of communities surveyed (Berkeley, Laguna Beach, Oakland, Santa Barbara, Tiburon) employ a private dispute resolution system for vegetation obstructions occurring on private property in lieu of absolute regulations limiting the height or massing of vegetation.  When a property owner (the complainant) takes issue with neighboring vegetation obstructing a view, they must first attempt to resolve the issue informally with the owner of the vegetation.  In the event that this does not resolve the dispute, the complainant may request mediation.  If mediation does not resolve the issue the complainant may request arbitration.  In some communities a dispute is not required to have attempted mediation prior to arbitration.  In the event that the arbitrator�s decision is not effectuated, the complainant retains the ability to proceed with formal litigation.  The municipality has little to no involvement facilitating the process or enforcing the outcome of mediation and/or arbitration.  The extent of staff involvement in many communities is limited to answering questions relating to the process and directing property owners to those sections of the municipal code outlining the process. 

It is important to note that about half of the communities surveyed acknowledge that it is the legal right of a property owner to have a view.  The others do not acknowledge this as being a legal right in their municipal code text.  The majority of communities utilizing this method of dispute resolution do not attempt to define what does or does not constitute a �view� or �unreasonable obstruction.�  They do not attempt to prioritize views.  A view of the mountain has no more or less value than a view of the harbor.  A view from the living room has no more or less value than a view from the kitchen.  Rather, most communities surveyed have crafted a list of unranked criteria that are taken into consideration by the mediator or arbitrator when resolving the dispute.  They are not absolute. The criteria are applicable depending upon the dispute at issue, providing increased flexibility to both the complainant and vegetation owner when making a case in support of or opposition to remediation.  Examples of these findings, considerations, and criteria are detailed below:

• The distance between the complainant�s home and the tree or vegetation obstruction for which remediation is sought (Santa Barbara)

• The quality of pre-existing views being obstructed, including obstruction of landmarks, vistas, or other unique features (Tiburon)

• The visual quality of the tree, including but not limited to species characteristics, size, form, texture, color, vigor, location and other tree related factors, including such items as indigenous tree species, specimen tree quality and rare tree species (Port Orchard, WA)

• The hazard posed by a tree(s) 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 (Berkeley)

• The extent to which the trees interfere with efficient operation of a complaining party�s pre-existing solar energy systems (Port Orchard, WA)

• The extent to which the tree(s) or vegetation provide habitat value for wildlife (Santa Barbara)

Some municipalities further require the mediator or arbitrator to provide guidelines for restorative action to ensure survivability of the vegetation.  In the City of Berkeley, the restorative actions may include: trimming, thinning, delayed trimming or thinning, topping or tree removal (with replacement plantings).  However, the mediator may limit restorative actions to trimming or thinning where �possible and practical� and may further require trimming or thinning on a delayed seasonal basis to provide time for the top of the tree to grow above the point where it obstructs sunlight or view.  Further, the City of Berkeley does not recommend that topping be utilized to restore a view, as it is not generally deemed an appropriate arboricultural practice. 

This method of dispute resolution has advantages and drawbacks depending upon perspective.  Private dispute resolution requires minimal participation or fiscal expenditure by the municipality. Disputes involving private property are not forced into burdensome permitting processes or subject to discretionary consideration.  The municipality has no input when selecting a mediator or arbitrator or any responsibility to enforce the resultant outcome.  The mediator or arbitrator is selected by the complainant and vegetation owner.  Although many communities require the complainant or vegetation owner to assume certain costs (mediation or remedial action), payment arrangements may be modified in mediation or arbitration.  In summary, the mediation process for trees on private property, serves foremost to provide complainants with a course of action to enter into with the property owner causing the obstruction. 

The chief complaint of this method is that the complainant cannot force participation by the vegetation owner.  If the municipality does not facilitate the process, or at least require participation by the vegetation owner, there may be little incentive to participate in a mediation or arbitration proceeding, particularly when it may come at any cost to the vegetation owner.  In the event that the vegetation owner declines to participate in mediation or arbitration, the only available course of action is litigation.  Another complaint of this method is that the resultant action may not be completed satisfactorily and that very few municipalities enforce the decisions of the mediator, arbitrator, or litigation.  It is strictly a civil matter between the complainant and the foliage owner.  Lastly, there is no absolute guarantee that the mediator or arbitrator selected by the complainant and vegetation owner will utilize the findings or criteria crafted by the municipality in their resolution of the dispute. 

The City of Rancho Palos Verdes takes a very different approach.  The citizens of Rancho Palos Verdes passed Proposition M in 1989 that set forth provisions for the preservation of views and the restoration of views impacted by foliage growth.  The provisions of Proposition M have been incorporated into their code and are administered by the View Restoration Division.  The City of Rancho Palos Verdes facilitates the dispute resolution process and remediation actions are rigidly enforced by city staff.  The ordinance, adopted by ballot initiative in 1990, explicitly defines �view� and �viewing area� and further distinguishes between �near views� (e.g. scenes located on the peninsula: a valley, ravine equestrian trail, etc.) and �far views� (e.g. scenes located off the peninsula: the ocean, Los Angeles basin, Vincent Thomas Bridge, etc.).  Trees that do not exceed 16� in height or the roofline level, whether they impair a view or not, are exempt from the City�s ordinance and review.  In addition to this, the ordinance employs mandatory findings for determining when remediation is required.  The mandatory findings for remediation are detailed below:

• The applicant has complied with the early neighbor consultation process and has shown proof of cooperation on his/her part to resolve conflicts.

• The foliage exceeds 16 feet or the ridge line of the primary structure, whichever is lower, whether such foliage is located totally on one property, or when combined with foliage located on more than one property.

• The foliage to be removed is located on the property, any part of which is less than 1,000 feet from the applicant�s property line.

• The foliage significantly impairing the view did not exist as view impairing vegetation when the lot from which the view is taken was created. 

• Removal or trimming of the foliage will not cause an unreasonable infringement of the privacy of the occupants of the property upon which the foliage is located.

Similar to private resolution, the complainant must first attempt to resolve the dispute informally with the foliage owner.  If this attempt is unsuccessful, the complainant files an application for a �view restoration permit� with the City of Rancho Palos Verdes.  Once this application is deemed complete, the city engages a private mediator who attempts to resolve the dispute using the standards set forth in the ordinance.  In the event mediation brings no relief, the item is set for a public hearing by the Planning Commission.  During this process staff may conduct multiple visits to the complainant�s and foliage owner�s properties.  Further, Planning Commission members are required to visit the complainant�s property prior to issuing a decision.  If action is mandated by the Planning Commission, the foliage owner(s) must take action within 90 days.  If no action is taken, the City of Rancho Palos Verdes obtains a court order to perform the mandated remedial action at the foliage owner�s expense.  Once an agreement is reached or view restoration permit approved, it is the responsibility of the foliage owner to maintain the restored view.  In the event either party is unsatisfied with the decision rendered, an appeal may be filed with the City Council. 

The process employed by the City of Rancho Palos Verdes has evolved a great deal since its inception.  The City originally did not require mediation or utilize their Planning Commission to hear view disputes.  Rather, the City had established a view restoration committee that acted as a group of informal mediators.  Approximately 75% of all disputes were resolved by the group.  Ultimately, the City elected to require mediation (as facilitated by the City).  If mediation was unsuccessful, the view restoration committee would hear the item and render a decision that could ultimately be appealed to the Planning Commission and/or City Council.  This process proved so successful that the number of disputes referred to the view restoration committee declined substantially.  The committee was soon thereafter abolished for lack of work, and its responsibilities were transferred to the Planning Commission. 

As aforementioned, the City of Rancho Palos Verdes facilitates the process entirely.  According to City staff, this method has proved most beneficial to persons seeking view relief.  Prior to the ordinance, many persons had attempted to informally resolve disputes with minimal success, yet aside from litigation, there was little recourse.  Even if mediation or arbitration had been available, there was no ability to require participation by the foliage owner.  Further, for those persons who seek to resolve their disputes without having to undergo a public hearing, mediation is expeditious and provides increased flexibility in reaching a solution beneficial to all parties involved. 

The City of Rancho Palos Verdes prefers having a publicly facilitated process because the ordinance is applicable citywide.  The City�s time and fiscal investment is great because of this.  The City currently employs 2 full-time staff members who work foremost with view disputes.  In addition, a private mediator who is versed in the ordinance is retained by the City.  It can take up to two months to achieve resolution of a two-party dispute (one person making the complaint and one person owning foliage) through mediation and anywhere from four to six months if a Planning Commission hearing is necessitated.  It is estimated that the annual costs to the City total $200,000 to $250,000.  The costs to the complainant are substantial as well; a view restoration permit costs $2,500 and this does not include the costs for remedial action. 

Trees that do not exceed 16� in height or the roofline level, whether they impair a view or not, are exempt from the City�s ordinance and review.  If a property owner is seeking view relief and the subject vegetation is does not exceed 16� in height or the roofline, the property owner must work with the vegetation owner to remedy the dispute with no municipal intervention.  At Burbank�s community meetings, attendees described view blockages resulting from vegetation that was less than 16� in height or that did not exceed the roofline level.  Even if the City of Burbank adopted a program identical to that employed by the City of Rancho Palos Verdes, some scenarios as described by attendees of the public meetings would not be remedied as the subject vegetation would be exempt. 

Trees on Public Property

The dispute resolution processes detailed above are usually reserved for trees occurring on private property.  Most cities do not subject themselves to mediation or arbitration when the subject tree is city owned and/or maintained, regardless of its location in a park, street, or nature reserve or take into consideration a view occurring on private property when deciding where to plant foliage.  Moreover, many cities do not codify that a right exists for views to be restored if the obstruction is caused by the municipality.  Rather, most cities with vegetative view ordinances have some specific procedure where a complaint is submitted and evaluated by a city department or designee (city arborist or forester).  Many communities have created handouts similar to the �Good Neighbor Guides� detailed above, outlining tree planting, maintenance, and removal regulations. 

The City of Rancho Palos Verdes is again the exception.  A residential property owner whose view is being impaired by a public tree or foliage may file a City Tree Review Permit along with a non-refundable processing fee of $200.  The Director of Planning, Building, and Code Enforcement will then grant that City Tree Review Permit only if, after conducting an investigation of the subject property, it is determined that the tree(s) or foliage located on public property, a city easement, or in the public right-of-way are significantly impairing a view from a defined viewing area.  This administrative decision may be appealed to the Planning Commission at a cost of $1081.00

Generally, the criteria (whether they be absolute or weighted as per the situation) considered with regard to private trees are also applied to public trees.  However, when dealing with public trees, a much greater emphasis is placed on equitably balancing the interests of the complainant with that of the greater public and also on the health and continued survivability of the tree.  Private tree disputes generally involve two property owners (the complainant and foliage owner) or a small handful of impacted parties.  Disputes involving public trees on streets, in parks or nature not only impact the complainant and municipality but also neighborhood residents, park patrons and the general public.  Most communities employ a balancing test or additional findings to be considered by the city department or designee when reviewing the complaint in question.  In addition, most municipalities prioritize their remedial actions so that removal of the tree is required in only the rarest of circumstances. 

The foremost variable when evaluating public trees is (a) who is responsible for taking the remedial action and (b) who pays for it.  In the majority of cities surveyed, it is either the municipality or a contractor designated by the municipality who effectuates the remedial action.  However, in the cities of Berkeley and Oakland, the complainant is responsible for selecting and compensating a contractor.  In Santa Barbara and Tiburon, the city selects the contractor and then the complainant is billed for services rendered.[1]  In Rancho Palos Verdes, the city is responsible for action and assumes all costs incurred.  Those cities who handle remedial action themselves, or who contract this duty, cited little difficulties, except that on a small handful of occasions the remedial action, once performed, did not provide the degree of relief sought by the complainant.

Community Meetings

Staff retained the services of Robert Odland, a view protection expert, to work with the residents of the hillside area to determine what type of protection was desired and feasible as it related to vegetation obstruction.  Staff and the consultant conducted two community meetings on April 12, 2006 and June 21, 2006.  Agendas and supplemental handouts for both meetings are attached as Exhibits B through E.  Public notice of both community meetings, as well as this City Council meeting, were mailed to all property owners in the hillside area and other persons requesting to receive notices related to view protection issues.  Both community meetings were well attended, with over 45 hillside residents at the first meeting and 30 residents at the second meeting. 

The purpose of the first meeting was to discuss the current conditions in the Burbank hillside area with regards to vegetation and to examine the full spectrum of view protection and restoration options that hillside residents wished to have considered.  A handout topically listing these items is attached as Exhibit F.  Major points raised by the public included the following:

• There are multiple situations where trees may block views: existing trees currently obstructing views, existing trees that do not currently obstruct views but may do so in the future, and new trees that may obstruct views in the future. 

• It is difficult to equitably balance one property owner�s right to a view versus the abutting or adjacent property owner�s right to privacy.

• Defining what constitutes a view and/or prioritizing their importance is extremely complicated and subject to interpretation by the person having the view; a view of the hillside may be as important as a view of the city.

• Persons outlying the hillside area (i.e. Mountain Fire Zone) are also concerned about preserving their views.

• View complainants have no course of action, aside from litigation, if the neighboring property owner is unwilling to discuss the situation.  Litigation is costly and time consuming and may not bring about the desired outcome.

• Trees owned and maintained by the City should be held to the same standards as those occurring on private property; any considerations used when making determinations about private trees should be equitably applied with evaluating claims against City trees.

• Consideration of view disputes should not involve �one size fits all� criteria.  Situations should be examined and resolved on a case-by-case basis, evaluating the uniqueness of each situation. 

• Fences and walls in the hillside area should be (a) regulated and (b) regulated more stringently than fences and walls occurring in the balance of the city.

It is important to note that this report does not address fences and walls.  Fences and walls occurring city-wide are subject to the interim fence and wall standards as adopted by the City Council in February 2006.  Fences and walls may be additionally conditioned through the hillside development permit. 

Since October 2006, the Blue Ribbon Task Force on Fences, Walls, and Landscaping has been meeting monthly to review the interim landscaping standards as adopted by the Council.  Under the interim standards, there are no height limits on vegetation or spacing requirements for trees.  The Blue Ribbon Task Force has and will continue to consider landscaping regulations at their next meeting on July 11^th.  Their recommendations, if adopted by the City Council, would also be applicable city-wide.  Fence, wall, and landscaping standards specific to the hillside area will be considered by the task force at their July or August meeting.  At that time, the Task Force will consider the existing applicable regulations and make recommendations as to their appropriateness in the hillside area.  If the task force believes the existing standards applicable to the hillside area need to be modified, their recommendations will be forwarded to the Council. 

At the second meeting, attendees participated in a voting exercise designed to gauge the level of support for policy options that could be included in a view protection / vegetation ordinance.  A handout illustrating the voting results is attached as Exhibit F.  The attendees generally expressed the greatest support for the following:

• Creating a public facilitated dispute resolution process to address view obstructions on private property.

• Establishing an absolute height limit; remedial action should be mandatory if the height limit is exceeded.

• The date of initial obstruction should be irrelevant when seeking view relief.

• Creating a �Good Neighbor Guide� outlining relief options available for foliage obstructions caused by private and public trees.

• Complainant should pay all or the majority of mediation and arbitration costs incurred when attempting to resolve a view dispute.

• Foliage owner should pay all or the majority of costs of taking remedial action.

• The City of Burbank should be willing to act on city owned and/or maintained trees so as to preserve hillside views.

• The method and criteria for resolving disputes involving public trees should be the same as that used for private trees.

• The City of Burbank should be required to take the remedial action and assume all costs for the action.

View Preservation & Restoration

It was stated earlier in this report that there exist many scenarios where a tree can or could obstruct a view: existing trees that currently obstruct a view, existing trees that do not currently obstruct a view but may do so in the future as they mature, and new trees that have yet to be planted and may obstruct a view in the future. Staff recognizes that not all persons are cognizant of the implications their foliage (whether it be new or existing) may impose on abutting or adjacent hillside views.  Further, staff realizes that some persons may understand the implications, yet place their own interests in privacy, shading, or personal taste ahead of the interests of the neighboring view. 

Policy and process may be able to address disputes where a view is already being obstructed.  However, it may prove extremely difficult to regulate trees that have yet to be an impediment or trees that have yet to even be planted.  Staff believes it would be unreasonable and near impossible to create and enforce any regulations on trees that have yet to be planted; trees that may have the ability to obstruct views in the future given their height at maturity and foliage thickness.  The same can be said for trees that are already planted but have yet to impede upon an abutting or adjacent views.  Further, it could be argued that one of the most aesthetically pleasing elements of the hillside development area is the great diversity of vegetation that exists taking into consideration the slope, topography, and existing development.  Placing controls on the height of or type of vegetative species in this unique area would hinder its diversity. 

Staff recommends against any regulations limiting the ability of a property owner to select a desired species to be located on private property.  Further staff would not recommend taking any sort of proactive action on foliage that has yet to impact a view but may do so in the future.  Rather, staff would recommend that the focus be placed on those trees that are already obstructing a view.  Although this shifts the focus of the vegetative controls towards restoration rather than preservation, staff would recommend that any view ordinance stress the importance of neighbor consultation prior to the planting of new vegetation and the importance of considering abutting and adjacent views when selecting and maintaining vegetation. 

In absence of regulation, staff recommends preparation of a �Good Neighbor Guide� detailing any processes and/or regulations, as adopted by the City Council as part of this second phase of the view protection ordinance, with reference to vegetation and the preservation and restoration of views.  This document may further recommend vegetative species most compatible with the topography and slope of the area with respect to view preservation and further provide information about the safe trimming and thinning of vegetation.  Communities having a document similar thereto have distributed it annually or bi-annually to subject residents, made the document accessible online and further available to stakeholder parties such as real estate agents and home owner associations.  Staff would recommend similar distribution.  Receipt of this guide does not guarantee compliance, but rather would serve as a friendly reminder to take into consideration the view of a neighboring property owner or educate as to vegetation that might best avoid dispute in the future as the vegetation matures. 

Resolution of Private Tree Disputes

Currently, a Burbank hillside resident who takes issue with vegetation obstructing their view has little course of action.  They may attempt to resolve the situation with the foliage owner.  If unsuccessful, litigation is the only available outlet to pursue.  The City does not currently have any regulations or dispute resolution process whereby persons can attempt to mediate their disputes given a set of criteria to be taken into consideration.  Many persons attending the two community meetings commented that the existing method of informal resolution rarely achieves the desired outcome, and expressed support for a system where the City required the foliage owner to participate in the process and where the City facilitated the discussion. 

The majority of communities having regulations or dispute resolution processes employ a private approach requiring little municipal facilitation or enforcement.  The exception to this is Rancho Palos Verdes.  Rancho Palos Verdes first facilitates a mediation attempt between parties.  If an agreement cannot be reached between parties, the view restoration request is decided by the Planning Commission.  There are advantages and disadvantages to both dispute resolution types.  Staff recommends creation of a hybrid process that would include the following elements:

• The complainant files a dispute resolution request with the Planning and Transportation Division requesting view relief and identifies the subject foliage.  The complainant may include any additional information (photographs, legal documents, etc.) to aid in this request that remediation is necessitated.

• The complainant must demonstrate that they have attempted to informally resolve this issue with the foliage owner.

• Once staff deems the application complete, the complainant and foliage owner are notified in writing that a formal request for view restoration has been filed with the City of Burbank.

• Staff notifies both the complainant and foliage owner of their required responsibility to attend mediation as facilitated by a mediator retained by the City of Burbank.

• This mediation is scheduled by staff and a mediator would be retained by the City of Burbank who is familiar with the findings applicable to the dispute at hand.

• At mediation, the mediator would work with both the complaint and foliage owner to settle the dispute using findings adopted by the Council. 

• Findings utilized would be similar to those utilized by other cities and discussed on Page 4, taking into consideration the uniqueness of the situation.

• Mediation costs would be borne by the complainant and remediation costs would be negotiated amongst the complainant and foliage owner at mediation.

• If the mediation agreement is not carried out appropriately or no agreement is reached, there would be no enforcement by the City; the complainant could pursue litigation against the foliage owner.

• In the event that property ownership changes, the agreement formerly reached between the complainant and former foliage owner does not apply; a new process would be required to resolve the dispute.

Staff believes the above detailed approach allows for flexibility in allowing the property owners to first attempt to resolve the issue themselves with no City involvement (informal resolution), and then facilitate mediation thereafter.  Staff believes that it would be appropriate for the City to retain one or two mediators who are familiarized with the findings, as approved by Council.  The mediator would be compensated by the complainant preceding mediation, but city staff would facilitate participation.  Many members of the public expressed their support for a public hearing, in front of the Planning Board or City Council, in the event either party is not satisfied with the decision of the mediator or if mediation is entirely unsuccessful.  Staff does not believe it most appropriate for appointed or elected officials to render decisions on issues involving a dispute between two property owners, neither of which is owned by the City; this is best left to a privatized mediation or litigation process.  Further, the fiscal costs and staff resources assumed if an appellate ability exists would be significant.  This would also place additional burden on already crowded Planning Board and City Council schedules.  If it were the direction of the Council to establish an appeal process for these disputes, staff recommends that an appropriate fee schedule apply. 

Attendees at the two community meetings were in support of setting absolute standards to be strictly applied in whatever proceeding is established.  However, other attendees stated they wanted to see standards applied more loosely, taking findings into consideration on a case-by-case basis as they are applicable to the vegetation and view at issue.  Staff recommends crafting findings that could be flexibly applied.  The City of Santa Barbara provides unranked criteria that should be considered by neighbors or mediators in evaluating a view of sunlight access dispute.  Further, staff believes it is important to take into consideration (if possible to demonstrate) the timing of the initial view obstruction.  It seems reasonable to consider the time of view obstruction in the type of remedial action and the sharing of costs, with a presumption that if the view obstruction already existed when the house whose view is obstructed was built or purchased, the owner of the tree would have reduced obligations. 

Resolution of Public Tree Disputes

As noted in this report, mediation and arbitration processes are generally reserved for disputes involving vegetation occurring on private property.  The majority of communities surveyed do not explicitly remove, thin, trim, shape, or top trees specifically for the purposes of restoring or protecting a view occurring on private property.  Further, many of the communities do not take into consideration their impacts on surrounding private views when selecting plant species or choosing locales for installation.  Rather they are considerate of the public interest in its pursuit of appropriate arboriculture of municipal parkways, parks, and nature locales. 

The City does not currently remove, thin, trim, shape, or top trees specifically for the purposes of restoring or protection a view occurring on private property.  They do, however trim for other purposes, such as the health or safety of the tree, public safety considerations, or to clear for utility lines.  The Park, Recreation & Community Services Department (PRCSD) has substantial concerns about the negative effects of trimming or topping on the health, appearance, and values of trees especially in light of the particular species prevalent in Burbank�s hillside areas.  The PRCSD also does not have the staff or budget to do the thinning or trimming themselves, and would have to impose strict qualifications, including liability, on private contractors hired to work on a city tree. 

Attendees at both public meetings felt strongly that any process or criteria utilized when settling private disputes should be identically applied in considering disputes involving public trees.  Staff believes that, although a formal course of action is needed, it should not be identical to its private counterpart due to public benefits of public trees.  Staff recommends that a process be established whereby a person, who takes issue with a loss of view as a result of a public tree, may formally submit a complaint and have a remediation request evaluated by City staff.  Appropriate PRCSD staff would make a determination as to whether or not remediation is necessary and if so, to what extent remediation may be provided.  This process would include the following elements:

• The complainant submits documentation to PRCSD staff requesting view relief and identifies the subject tree.  The complainant may include any additional information (photographs, legal documents, etc.) to aid in the request that remediation is necessitated. 

• PRCSD staff verifies that subject tree is a public tree; staff may request to visit the subject property to examine the view loss as claimed by the complainant.

• When considering the view relief request, PRCSD staff considers criteria applied by the mediator in disputes involving private trees and additional findings, as adopted by the Council, to take into additional consideration public interest and continued survivability of the subject foliage; staff may further consider any pending or scheduled maintenance to subject vegetation.

• PRCSD staff prepares recommendation outlining what remediation action should be taken and if so, to what extent.

• PRCSD staff provides recommended action to property owner for consideration.

• If the property owner accepts staff recommendation, action is taken to resolve the view dispute as per the staff recommendation by the City of Burbank or a contractor as approved by the City of Burbank; the PRCSD staff would determine whether the complainant or the City of Burbank would assume these costs.

• There would be no appellate body who would hear an appeal on this request.

If the remediation action or decision not to act proves unsatisfactory to the complainant, many communities allow the decision to be appealed to a Parks & Recreation Board, City Tree Commission, or Planning Board, and further appealed to the City Council.  Other communities elect to provide no appeal ability.  Staff recommends that no appeal ability exist in the event the complainant is not satisfied with the course of action as recommended by staff. 

The PRCSD staff is most qualified to make a decision, using the established criteria, as to the appropriate course of action to ensure the continued interests of the tree, public, and property owner when examining a view restoration request.  In addition, the fiscal costs and staff resources assumed if an appellate ability exists would be significant.  It would need to be determined what body would hear the initial appeal, any appeals occurring thereafter, and what staff department would be responsible for taking these appeals to the appellate body for consideration. 

This process would provide additional consideration of views in comparison with what currently exists.  As aforementioned, the PRCSD does not currently remove, thin, trim, shape, or top trees specifically for the purposes of restoring or protecting a view occurring on private property.  Trees located in parks and on streets would be subject to a balancing test between restoration of a private view versus the public interest and continued longevity of the tree species.  Trees existing in nature, that are not maintained by the City and allowed to grow and mature with no intervention, would not be subject to view relief requests, due to liability concerns about taking maintenance action on trees that are not normally maintained. 

FISCAL IMPACT:

The private mediation process utilized by many cities has near zero fiscal impact.  The city has minimal interaction with the complainant or foliage owner as they attempt to resolve their dispute.  The hybrid approach recommended by staff where the City facilitates the mediation process could have substantial costs related to staff resources.  Although the costs of the mediator would be assumed by the complainant, staff would still be required to accept and log view relief requests, make determinations as to completeness, schedule mediation sessions, and notify property owners.  If the complainant or foliage owner were to be permitted to appeal decisions to the Planning Board and City Council, similar to the process utilized in Rancho Palos Verdes, the fiscal impacts and staff resources utilized would be significant. Additional staff resources would be needed for the preparation of staff reports, mailing of public notices, and presentations.  Additionally, the schedules of Planning Board and Council would need to be augmented to allow for additional public hearings on view disputes.  As detailed earlier in this report, city staff from Rancho Palos Verdes stated approximately $200,000 to $250,000 is spent annually on their view protection and restoration program.  Staff�s recommendation for resolving disputes involving public trees could have substantial impacts on staff resources as well.  Staff resources would be required to evaluate view relief claims involving public trees and there would be additional incurred costs associated with restorative action.  There is no way to predict the number of applications that would be received if vegetative controls are adopted.  However, based on the input received at the community meetings, many property owners would be interested in pursuing view relief.  If the City were to become responsible for the enforcement of mediation the associated costs incurred by the City would be significant and likely require staff resources from the License and Code Division, Planning Division, and Parks, Recreation and Community Services Department. 

CONCLUSION:

Regulating vegetation, that has yet to exist, so as to prevent the obstruction of views or regulating existing vegetation, that has yet to obstruct views, is incredibly difficult.  The proposed ordinance would focus both on preservation and restoration.  Good Neighbor Guides would continue to stress the importance of view consideration and recommend species and maintenance practices that would minimize the likelihood of conflict, but it is the assessment of staff that greater relief could come to a greater number of persons if a process were codified designed to address those disputes where a view is already obstructed.  Because of this, staff further recommends that any view ordinance adopted include a dispute resolution processes that provide some course of action for persons who take issue with neighboring private and public foliage. 

How to best address the future regulation of vegetation in the hillside area depends upon Council�s concerns about public facilitation of a process, enforcement of remediation actions, and also about providing a sufficient course of remedy for hillside view residents.  Staff recommends a hybrid approach to disputes involving vegetation occurring on private property, creating a cause of action for the property owner seeking to restore his or her view.  At the complainant�s request staff would request and facilitate mediation between the opposing parties.  In the event that mediation is successful, no further action would be necessitated.  If mediation is unsuccessful, the opportunity exists for the private property owner to pursue litigation against the foliage owner.  With regard to trees occurring on public property, a property owner would submit and have a formal request for view relief evaluated by PRCSD staff, considering both the interests of the private property owner to have a view and the interests of the general public and continued survivability of the vegetation.  In either case the course of action, as proposed by staff, is an improvement on what currently exists.  Currently, the City has no ability to become involved in view disputes involving private property owners; all responsibility lies with the complainant and foliage owner.  With regard to public disputes, the City currently does not take into consideration the views of private property owners whatsoever. 

Many of the communities surveyed for the purposes of this report employ similar processes with regard to private and public trees.  Even though the City of Rancho Palos Verdes utilizes a more public approach in the resolution of disputes, it still requires that disputing parties attempt to settle the situation informally and additionally requires mediation so that the dispute may be resolved without having to endure a public hearing.  However, each community has elements unique to their community addressing decision making, enforcement of decisions, payment for dispute resolution process and remediation actions, or use of flexible versus absolute criteria for consideration.  In conclusion, there is no one preferred method of resolving vegetation disputes that the City of Burbank should attempt to pattern.  Staff is recommending a hybrid approach, taking components from both private and public dispute resolution approaches, and having some city involvement so as to facilitate the dispute resolution process but not enforce the remediation actions.  For trees located on streets and parks, City staff would attempt to equitably balance the interests of the property owner with those of the public and further ensure the continued survivability of the tree. 

RECOMMENDATION:

Staff recommends that the City Council provide staff with further direction with regard to Phase II of the View Protection Ordinance as relating to vegetative controls.  If so directed, staff would work with the City�s consultant to draft a proposed ordinance and hold further community meetings to seek input on the draft ordinance before returning to the Planning Board and City Council.

EXHIBITS

Exhibit A          Map of hillside area

Exhibit B          Agenda from April 12, 2006 Public Meeting

Exhibit C          Handouts from April 12, 2006 Public Meeting  

Exhibit D          Agenda from June 21, 2006 Public Meeting

Exhibit E           Handouts from June 21, 2006 Public Meeting

Exhibit F           Meeting Notes from April 12, 2006 Public Meeting

Exhibit G          Voting Results from June 21, 2006 Public Meeting

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