To: Board of Supervisors
From: John Kopchik, Director, Conservation and Development
Report Title: Tree Obstruction of Views Combining District (-TOV) Text Amendment, County File #CDZT24-00002
☒Recommendation of the County Administrator ☐ Recommendation of Board Committee
RECOMMENDATIONS:
1. OPEN the public hearing on Ordinance No. 2024-21, RECEIVE testimony, and CLOSE the public hearing.
2. DETERMINE that adoption of Ordinance No. 2024-21, is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines sections 15061(b)(3).
3. ADOPT Ordinance No. 2024-21, Tree Obstruction of Views (-TOV) Combining District Ordinance, related to and establishing a property owner’s right to seek the restoration of views and sunlight that existed when the property owner purchased their property and establishing a process by which the property owner may seek restoration of these views when they are unreasonably obstructed by the growth of trees on another property.
4. DIRECT the Department of Conservation and Development to file a CEQA Notice of Exemption with the County Clerk.
FISCAL IMPACT:
The cost of preparing this amendment has been funded by the Department of Conservation and Development, Land Development Fund.
BACKGROUND:
Summary
This is a hearing on a County-initiated Zoning Text Amendment to amend County Ordinance Code chapter 816-2, the Tree Obstruction of Views Combining District (-TOV) ordinance, to provide a method for private property owners to gain restoration of views and sunlight lost due to tree growth by another private property owner. The proposed zoning text amendment would authorize the Board of Supervisors to establish one or more tree arbitration boards that would, at the request of the parties, hear view claim disputes and issue either binding or advisory decisions.
Background
Chapter 816-2, Tree Obstruction of Views (-TOV) Combining District of the County Ordinance Code was first enacted in 1984. The only area in the County that has been rezoned for inclusion in the -TOV Combining District is the Kensington area, however, other areas of the County may be rezoned for inclusion in the District at the direction of the Board. The purpose of the -TOV Combining District is to provide a method for private property owners within the unincorporated Kensington area to gain restoration of views and sunlight lost due to tree growth on another private property while not creating any greater right to a view or access to sunlight than existed at any time a claimant purchased their property.
Over the past twenty years, residents in Kensington have consistently contacted the District I Supervisor’s office about issues with views related to trees, including residents whose views are blocked and residents who have been asked to trim or cut their tree by a neighbor claiming view impacts. The County has generally referred residents to the existing Kensington -TOV Ordinance and provided explanatory help as needed. The current -TOV Ordinance refers residents to civil court proceedings if they cannot resolve their issues with their neighbor. Many residents have expressed concerns that the ordinance is confusing, unhelpful, vague, and lacks enforceability, in addition to favoring those with the means to hire lawyers to pursue their civil case.
Based on the concerns, Supervisor Gioia established a working group of Kensington residents who had differing views about tree-view issues. This working group discussed how to make the ordinance more clear and more effective and developed a draft revised ordinance which creates a more extensive County and community process to resolve tree-view disputes. The goal of the revised ordinance is to attempt resolution of tree and view disputes through a community or County process and avoid expensive civil lawsuits. The draft -TOV Ordinance revision was presented to the Kensington Municipal Advisory Council (KMAC) on August 28, 2024. KMAC recommended moving forward with the amendment to the Kensington -TOV ordinance.
OCTOBER 9, 2024, COUNTY PLANNING COMMISSION MEETING
The County Planning Commission considered the proposed -TOV Ordinance zoning text amendment at their meeting on October 9, 2024. After receiving staff’s presentation and taking public comments from one individual in support of the changes and receiving written comments from four individuals, the Commission closed the public hearing. As part of Commission deliberation, the Commission expressed concerns over both parties agreeing to go through the process for view restoration and resolution, and that the process may result in one party not agreeing to the outcome or to the cost allocation. Nevertheless, the Commission voted 5 to 0 in favor of recommending the Board approve the amendments.
PROPOSED ZONING TEXT AMENDMENTS
There are six proposed changes to the County -TOV Combining District Ordinance related to the purpose and intent of the Ordinance, the definitions within the Ordinance, the right to seek restoration of views, the evaluation of view obstructions, restorative actions, the procedures for resolving view claims, and the California Solar Shade Control Act. Each proposed change is described below (referenced sections are from the proposed ordinance):
Purpose and Intent
The proposed ordinance clarifies the purpose and intent of the -TOV Ordinance to include that the Ordinance establishes a property owner’s right to seek the restoration of views and sunlight that existed when the property owner purchased their property, and that the Ordinance establishes a process by which the property owner may seek restoration of these views and sunlight when they are unreasonably obstructed by the growth of trees on another property. (Section 816-2.204.)
Definitions
The proposed ordinance:
• Adds definitions for “arborist” and “arborist’s report.” (Section 816-2.208, paragraphs (a) and (b).)
• Revises definition of “view” to specify that views are defined as scenes from primary living areas of a residence or from an exterior deck attached to a residence, and otherwise amends the definition to conform to the definition of view in Chapter 84-74 (Kensington (-K) Combining District) of the County Ordinance Code. (Section 816-2.208(k).)
In addition, all definitions are combined under one section (816-2.208).
Right to Seek Restoration of Views
The proposed ordinance clarifies that a view claimant has the right to seek restoration of views or sunlight that existed on the claimant’s property when the claimant acquired the property, where the views or sunlight have been unreasonably obstructed by the growth of trees on another property. This clarification does not affect the limitation that a view claimant has no right greater than that which existed when the claimant acquired the property. (Section 816-2.404.)
Evaluation of View Obstructions
The proposed ordinance adds tree flammability and tree health as factors to be considered when determining the benefits and burdens derived from an alleged view obstruction (Section 816-2.410).
Restorative Actions
The proposed ordinance:
• Adds ongoing tree maintenance necessary to preserve views or sunlight as a possible restorative action that may result from the resolution of a view claim. (Sections 816-2.414 and 816-2.416(g).)
• Clarifies that a restorative action resulting from the resolution of a view claim that affects a protected tree must comply with Chapter 816-6, Tree Protection and Preservation Ordinance, of the County Ordinance Code. (Section 816-2.416(a).)
Procedures for Resolving View Claims
The proposed ordinance expands procedures or establishes new procedures for resolving view claims, including:
• Initial Reconciliation (Section 816-2.602). The proposed ordinance maintains a process for voluntary initial reconciliation, but it also:
o provides that parties should attempt to reach a mutual agreement as to costs for any restorative actions or replacement plantings;
o provides that if the claimant seeks to establish a view that did not exist when the claimant acquired the property, that the claimant should expect to pay all costs of the actions unless the parties agree otherwise; and
o clarifies that claims related to the establishment of a view that did not exist when the claimant acquired the property are not governed by the ordinance and are not reviewable by a tree arbitration board.
• Voluntary Mediation (Section 816-2.604). The proposed ordinance establishes a new process for voluntary mediation if initial reconciliation is unsuccessful. Acceptance of an offer to mediate is voluntary. The Department of Conservation and Development will provide, upon request, a list of qualified mediators and mediation services. Fees and costs will be as agreed upon by the parties and the mediator.
• Arbitration Before a Tree Arbitration Board (Section 816-2.606). The proposed ordinance establishes a new process for voluntary, binding arbitration before a tree arbitration board designated by the Board of Supervisors if initial reconciliation and mediation are unsuccessful. The current ordinance provides for binding arbitration, but requires the parties to seek out, select, and agree upon an arbitrator. The County does not participate in arbitration under the current ordinance. The proposed ordinance provides that the parties may agree to binding arbitration before a County tree arbitration board. The proposed ordinance provides for the following, if the parties agree to binding arbitration:
o Each party will pay 50% of a filing fee set by the Board of Supervisors unless the parties agree to a different allocation of costs.
o With the filing fee, the initiating party will submit a view claim to the Department of Conservation and Development. The tree arbitration board will review the view claim at a noticed public meeting, with notice proved to the affected parties and the owners of any property within 300 feet of the property where the trees are located.
o The tree arbitration board will issue a written decision to the parties, which will include the board’s findings, any required restorative actions, and an allocation of all costs.
o The physical implementation of a mandated restorative action must begin within 90 days, and must be completed within 180 days, after the decision is issued, unless otherwise specified in the decision.
o A tree arbitration board’s decision is final and binding and enforceable under Code of Civil Procedure Section 1280 et seq.
o The Department of Conservation and Development will record a decision that provides for limitations on the property of a tree owner.
• Fact-Finding and Advisory Decision by a Tree Arbitration Board (Section 816-2.608). The proposed ordinance establishes a new process for fact-finding and an advisory decision by a tree arbitration board designated by the Board of Supervisors if initial reconciliation and mediation are unsuccessful and if both parties do not agree to binding arbitration. The proposed ordinance provides for the following, if a party seeks an advisory decision:
o An initiating party may submit a view claim and pay the filing fee to the Department of Conservation and Development.
o The tree arbitration board will review the view claim at a noticed public meeting, with notice proved to the affected parties and the owners of any property within 300 feet of the property where the trees are located.
o The tree arbitration board will act as a factfinder and render an advisory decision.
o Each party may participate and present evidence, but the proceeding need not be postponed if any party refuses to participate.
o The tree arbitration board will issue a written advisory decision to the parties, which will include the board’s factual findings, any recommended restorative actions, and a recommended allocation of all costs.
o If litigation is required to enforce the decision of the tree arbitration board, the ordinance provides for a rebuttable presumption in favor of the tree arbitration board’s decision.
• Litigation (Section 816-2.610). The proposed ordinance maintains that a claimant may pursue civil legal action to resolve a view claim if initial reconciliation and mediation are unsuccessful and if the parties do not agree to binding arbitration.
Solar Shade Control Act
The proposed ordinance clarifies that the ordinance does not preclude any person from separately enforcing, if applicable, the provisions of the California Solar Shade Control Act (Section 816-2.804(b)).
CONSISTENCY WITH THE GENERAL PLAN
The proposed zoning text amendment of the -TOV ordinance was reviewed for consistency with the policies in the existing General Plan (2005-2020 General Plan) and in the draft General Plan update (Envision 2040 - A new General Plan for Contra Costa County). On November 5, 2024, the Board approved the draft General Plan update. This staff report describes consistency with the prior and newly-approved General Plans. The only area in the County that has currently been rezoned for inclusion in the -TOV combining district is the Kensington area. In both the existing and draft General Plan, there exist specific policies and goals for the Kensington area. Generally speaking, the majority of specific area policies for the Kensington area are applicable only to new residential and non-residential developments or infrastructure and neighborhood-wide improvements (e.g., roadways, pedestrian paths, and public safety facilities). However, policies 3-211 and 3-212 of the existing General Plan and Kensington policies 2 and 3 in the draft Envision 2040 General Plan include reasonable protection for existing residences regarding access to sunlight and preservation of views of scenic natural features and the developed environment such as bridges and the San Francisco skyline. In addition, Action item #4 of the draft Envision 2040 General Plan would require that the view protection ordinance is reviewed to ensure that it addresses issues such as view blockage by trees and vegetation. As such, the proposed zoning text amendment of the -TOV ordinance would be or remain consistent with the Kensington area policies and actions regarding the preservation of views and sunlight. Any potential, future rezoning of other areas in the unincorporated County for a -TOV overlay would be analyzed for consistency with the General Plan policies and actions in place at that time.
If approved, the zoning text amendment would clarify that restorative actions resulting from the resolution of a view claim that affects a protected tree must comply with the County’s Tree Protection and Preservation Ordinance (County Code Chapter 816-6). This action is consistent with the General Plan polices aimed at protecting environmental resources such as significant trees, particularly mature native species, and natural vegetation or woodlands (General Plan 2005-2020 Conservation Element, policy 8-6; Envision 2040 Conservation, Open Space, and Working Lands Element, policy COS-P6.1). The potential removal of any invasive, non-native tree species as a view restorative action would be consistent with the draft Envision 2040 General Plan policies encouraging removal of such trees (Policy COS-P6.4).
CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION
The Zoning Text Amendment is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15061(b)(3), the “common sense exemption.” CEQA Guidelines section 15061(b)(3) provides that a project is exempt when it is covered by the general rule that CEQA only applies to projects which have the potential for causing a significant effect on the environment. The proposed actions would establish a property owner’s right to seek the restoration of views and sunlight that existed when the property owner purchased their property. The proposed actions would establish a process by which the property owner may seek the restoration of these views through ongoing tree maintenance. No specific project or restorative action is approved with this Zoning Text Amendment. Any future projects or restorative actions would each be separately reviewed under their own subsequent CEQA analysis. Thus, it can be seen with certainty that there is no possibility that the proposed actions could have a significant effect on the environment.
CONCLUSION
The proposed zoning text amendment would amend the -TOV Tree Obstruction of Views Combining District (Chapter 816-2) of the County Ordinance Code to include that the Ordinance establishes a property owner’s right to seek the restoration of views and sunlight that existed when the property owner purchased their property and establish a process by which the property owner may seek restoration of these views and sunlight when they are unreasonably obstructed by growth of trees on another property. In addition, the proposed zoning text amendment would add or revise applicable definitions within the -TOV Ordinance. The proposed zoning text amendment would be consistent the County General Plan and Zoning Code. Therefore, staff recommends the Commission adopt a motion recommending that the Board of Supervisors approve the zoning text amendment.
CONSEQUENCE OF NEGATIVE ACTION:
If the Board does not approve the proposed ordinance, then the Tree Obstruction of Views (-TOV) Combining District of the County zoning code will not be amended to provide new or revised procedures for private property owners to gain restoration of views and sunlight lost due to tree growth by another private property owner, or to authorize the Board of Supervisors to establish one or more tree arbitration boards that would, at the request of the parties, hear view claim disputes and issue either binding or advisory decisions.
Attachments:
§ Attachment A - Ordinance No. 2024-21
§ Attachment B - Map of Kensington TOV Area
§ Attachment C - Presentation Slides