ARTICLE 16.1:
TREE DISPUTE RESOLUTION
SEC. 820. TITLE.
SEC. 820. TITLE.
This ordinance shall be known as the San Francisco Tree Dispute Resolution Ordinance.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 821. PURPOSES.
SEC. 821. PURPOSES.
(a) The San Francisco Tree Dispute Resolution Ordinance is enacted for the following public purposes:
(1) To create rights in favor of private property owners relating to the restoration of sunlight or views lost due to tree growth and to create a procedure for the resolution of disputes concerning those rights;
(2) To promote all feasible means of energy conservation and all feasible uses of alternative energy supply sources;
(3) To encourage the use of solar energy for heat and light, encourage food production in private gardens, and increase access to light and views of surrounding locale;
(4) To preserve and promote the aesthetic and practical benefits which trees provide for individuals and the entire community; and
(5) To discourage ill-considered harm to, or destruction of, trees.
(b) This ordinance shall not be read to impair obligations imposed by an existing easement or a valid pre-existing enforceable covenant or agreement.
(c) Nothing in this ordinance is meant to replace the peaceful, sensible, and just resolution of differences between neighbors acting in good faith.
(d) It is not a purpose of this ordinance to facilitate or encounter the transmission of radio or television signals.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 822. DEFINITIONS.
SEC. 822. DEFINITIONS.
For the purposes of this ordinance, the following definitions shall apply:
(a) "Community Boards of San Francisco" shall mean the neighborhood mediation/dispute settlement service established under the auspices of the Community Board Program, Inc.
(b) "Complaining party" shall mean any property owner who wishes to alter or remove a tree on the property of another which creates an obstruction to his or her access to sunlight or view.
(c) "Obstruction" shall mean any view or access to sunlight which is blocked or diminished by the growth, maintenance or location of a tree.
(d) "Restorative action" shall mean any specific requirement to resolve a tree dispute.
(e) "Solar access" shall mean the availability of sunlight to a property.
(f) "Thinning" shall mean the selective removal of entire branches from a tree so as to improve visibility through the tree and/or improve the tree's structural condition.
(g) "Topping" shall mean elimination of the upper portion of a tree's trunk or main leader.
(h) "Tree" shall mean any woody perennial plant, usually with one or more major trunks attaining a height of at least fifteen feet at maturity; as used in this ordinance, the singular shall include the plural and the plural shall include the singular.
(i) "Tree arbitrator" shall mean any trained and experienced arbitrator acceptable to both complaining party and tree owner to mediate or arbitrate a tree dispute.
(j) "Tree claim" shall mean the written basis for arbitration or court action under the provisions of this Article which includes the following:
(1) The nature and extent of the alleged obstruction, including pertinent and corroborating physical evidence. Evidence may include, but is not limited to, photographic prints, negatives, or slides. Such evidence must show absence of the obstruction at any documentable time during the tenure of the complaining party. Evidence to show the date of acquisition must be included.
(2) The location of all trees alleged to cause the obstruction, the address of the property upon which the trees are located, and the present tree owner's name and address.
(3) Any mitigating actions proposed by the parties involved to resolve the tree claim.
(4) The failure of personal communication between the complaining party and the tree owner to resolve the alleged obstruction as set forth in Section
823(a) of this Article. The complaining party must provide physical evidence that written attempts at reconciliation have been made and failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence.
(k) "Tree owner" shall mean any individual owning real property in San Francisco upon whose land is located a tree alleged by a complaining party to cause an obstruction.
(l) "Tree removal" shall mean the elimination of any tree from its present location.
(m) "Trimming" shall mean the selective removal of portions of branches from a tree so as to modify the tree's shape or profile or alter the tree's appearance.
(n) "Views" shall mean a distant vista or panoramic range of sight of San Francisco, neighboring areas, or the San Francisco Bay. Views include but are not limited to skylines, bridges, distant cities, geologic features, hillside terrains, and wooded canyons or ridges.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 823. PROCEDURES.
SEC. 823. PROCEDURES.
The procedures described in this Section shall be followed in the resolution of tree disputes between private parties.
(a) Initial Reconciliation. A complaining party who believes in good faith that the growth, maintenance or location of a tree on the private property of a tree owner diminishes the beneficial use or economic value of his or her property because the tree interferes with the access to sunlight or views naturally accruing to the property, shall notify the tree owner in writing of these concerns. The notification should, if possible, be accompanied by personal discussions to enable the complaining party and tree owner to attempt to reach a mutually agreeable solution.
(b) Community Board Mediation. If the initial reconciliation attempt fails, the complaining party may propose mediation with the Community Boards of San Francisco as a means to settle the dispute on a relatively informal basis. Acceptance of mediation by the tree owner shall be voluntary. Parties should be encouraged to give notice to immediate neighbors and solicit input. The Community Board mediator should consider the objectives, benefits and burdens set forth in this Article in attempting to help both parties reach a resolution of the dispute.
(c)
Tree Claim Preparation. In the event that the initial reconciliation process fails and Community Board mediation either is not elected or fails, the complaining party must prepare a tree claim as defined in Section 822(j), and provide a copy to the tree owner in order to pursue either binding arbitration or litigation. This process constitutes the filing of a tree claim. (d)
Binding Arbitration. In those cases where the initial reconciliation process fails and where Community Board mediation has not resolved the dispute, the complaining party must offer to submit the dispute to binding arbitration, and the tree owner may elect binding arbitration. The identity of the tree arbitrator shall be agreed upon by both the complaining party and the tree owner who shall indicate such agreement in writing. This agreement may provide for employment of experts representing the parties or may be limited to an investigation of the tree claim conducted by the tree arbitrator. The tree arbitrator shall follow the provisions of this Article to reach a fair resolution of the tree claim and shall submit a complete written report to the complaining party and the tree owner. This report shall include the tree arbitrator's findings with respect to all standards listed in Section 824 and a pertinent list of all mandated restorative actions with any appropriate conditions concerning such actions including a schedule by which mandates must be completed. Such actions must be completed with due regard for the health of the tree. (e) Litigation. In those cases where initial reconciliation fails and binding arbitration is not elected, civil action may be pursued by the complaining party for resolution of the sunlight access or view tree claim under the provisions of this ordinance. The litigant must state in the complaint that arbitration was offered and not accepted.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 824. STANDARDS FOR RESOLUTION OF DISPUTES.
SEC. 824. STANDARDS FOR RESOLUTION OF DISPUTES.
In resolving the tree dispute, the tree arbitrator or court shall consider the benefits and burdens derived from the alleged obstruction within the framework of the purposes of this Article as set forth in Section
821 in determining what restorative actions, if any, are appropriate. In proposing any given restorative action the complaining party shall have the burden of proving that the burdens posed by the tree owner's trees outweigh the benefits provided by the trees with respect to the proposed restorative action.
(1) The hazard posed by a tree 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.
(2) The extent to which the tree diminishes the amount of sunlight available to the garden or home of the complaining party.
(3) The extent to which the tree interferes with efficient operation of a complaining party's pre-existing solar energy system.
(4) The existence of landmarks, vistas or other unique features which cannot be seen because of growth of trees since the acquisition of the property.
(5) The extent to which the alleged obstruction interferes with sunlight or view. The degree of obstruction shall be determined by means of a measuring instrument or photography.
(6) The extent to which solar access or the view is diminished by factors other than trees.
(7) Deleterious effect of the tree upon the complaining party's vegetation through loss of heat and light except that the dropping of leaves or maintenance factors shall not be a burden under this ordinance.
(1) Visual quality of the tree, including but not limited to, species characteristics, size, growth, form and vigor.
(2) Location with respect to overall appearance, design, and/or use of the tree owner's property.
(3) Soil stability provided by the tree considering soil structure, degree of slope, and extent of the tree's root system.
(4) Visual, auditory and wind screening provided by the tree to the tree owner and to neighbors.
(5) Energy conservation and/or climate control provided by the tree.
(6) Wildlife habitat provided by the tree.
(7) The economic value of the tree as measured by criteria developed by the International Society of Arboriculture and the economic value of the property as a result of the tree.
(8) Other tree-related factors, including, but not limited to:
(i) The degree to which the species is native to the local region or area;
(ii) Indigenous nature of the species to which the tree belongs;
(iii) Specimen tree quality;
(iv) Rare tree species, and the frequency of new planting of a tree;
(v) Landmark tree designation, as determined pursuant to Section
811 of the Public Works Code.
(1) Restorative actions may include written directions as to appropriate timing of trimming, thinning, topping, or removal. Such restorative actions are to apply only to current parties to the agreement. The tree arbitrator or court may require compensation to the tree owner for value lost due to restorative actions.
Possible restorative actions may include (i) no action, (ii) trimming, (iii) thinning, (iv) delayed trimming or thinning, (v) topping, or (vi) tree removal with possible replacement plantings.
(2) Restorative actions shall be limited to the trimming and/or thinning of branches where possible and practical. Trimming or thinning may be on a delayed basis, providing time for the top of the tree to grow above the point where it obstructs sunlight or view.
(3) When trimming and/or thinning of branches is not a feasible solution, the impact on the health of the tree shall be considered before topping is required.
(4) In those cases where tree removal eliminates or significantly reduces the tree owner's benefits, required replacement plantings shall at the tree owner's option be set forth in writing prior to the tree removal. The tree owner may elect tree removal with replacement plantings (as an alternative to trimming, thinning and topping).
(5) All trimming, thinning, topping and tree removal required under this ordinance may be performed by a person or firm selected by the tree owner with the concurrence of the complaining party, except that in the event that the complaining party is not obligated to bear any of the cost for such action, his or her concurrence is not required. The use of a certified arborist for such work is especially encouraged; in the case of Landmark trees, use of a certified arborist is required.
(6) The extent of solar access or view available and documentable as present at any time during the tenure of the complaining party is the limit of restorative action which may be required.
(7) No restorative action may be required concerning any tree the base of which is more than 300 feet from the immediate vicinity of the dwelling of the complaining party's property. If no dwelling exists, the distance shall be determined from the most likely dwelling site upon the property or from the geographical center of the property at the discretion of the arbitrator or court as appropriate.
(8) A tree which has been the subject of restorative action under the terms of this ordinance is exempted from other property owners' claims for a period of five years from date of filing of a tree claim.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 825. APPORTIONMENT OF COSTS.
SEC. 825. APPORTIONMENT OF COSTS.
(a) Cost of Arbitration. The complaining party and the tree owner shall each pay 50 percent of the costs of the arbitrator's personal fee, if any.
(b)
Costs of Litigation. The complaining party shall pay 100 percent of both parties' reasonable attorneys' fees in the event that his or her claim is finally denied, or no action is ordered pursuant to Section 824(c). In all other cases the complaining party and the tree owner shall each pay his or her attorney's fees. Court costs shall be allocated to the parties at the court's discretion. (c) Costs of Restorative Actions. At any time during the procedure specified in this ordinance the parties may agree between themselves as to the allocation of the costs of restorative action. If such an agreement is not reached, the following shall apply:
(1) As to trees planted prior to the effective date of this ordinance the complaining party shall pay 100 percent of the costs of the initial restorative action. The complaining party shall pay the cost of subsequent restorative action as a result of the recurrence of the same obstruction.
(2) As to trees planted subsequent to the effective date of this chapter the tree owner and the complaining party shall each be responsible for 50 percent of the costs of restorative action and subsequent recurrence of the same obstruction.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 826. LIABILITIES.
SEC. 826. LIABILITIES.
(a) The issuance of Community Board mediation findings, an arbitration report or a court decision shall not create any liability of the City with regard to the restorative actions to be performed.
(b) The complaining party shall indemnify and hold harmless the tree owner with respect to any damages or liability incurred by said owner arising out of the performance of any work at the behest of the complaining party as follows:
(1) With respect to trees planted prior to the effective date of this ordinance, the complaining party shall indemnify the tree owner as to 100 percent of any such damages or liability.
(2) With respect to trees planted after the effective date of the ordinance, the complaining party shall indemnify the tree owner as to 50 percent of any such damages or liability.
(c) Failure to enforce on the part of the city will not give rise to any civil or criminal liabilities.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 827. ENFORCEMENT.
SEC. 827. ENFORCEMENT.
A violation of this Article is not a misdemeanor, and the enforcement of this Article shall be by private parties involved. The complaining party shall have the right to bring injunctive action to enforce any restorative action ordered pursuant to this Article.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 828. APPLICATION WITH OTHER LAWS.
SEC. 828. APPLICATION WITH OTHER LAWS.
Nothing in this ordinance shall be construed to affect, diminish, or replace the duties and authority of the Director of Public Works set forth in
Article 16 of the Public Works Code.
(Added by Ord. 445-88, App. 9/28/88)
SEC. 829. SEVERABILITY.
SEC. 829. SEVERABILITY.
If any portion of this ordinance or its application to any person or circumstances is held invalid, the remainder of the ordinance, including its application to other persons or circumstances shall remain in effect.
(Added by Ord. 445-88, App. 9/28/88)
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