A. View Restoration Permit: After exhaustion of the prehearing steps set forth in section 10-8-104 of this chapter, and upon application by a view owner in a form satisfactory to the director of planning and community development, the reviewing authority may issue a view restoration permit to a view owner with a protectable view as defined in this article where the protectable view from a viewing area is substantially disrupted by "foliage" as defined in this article and the reviewing authority makes all of the findings as set forth in this section.
B. Reviewing Authority: The reviewing authority for a view restoration permit application shall be the planning commission. If a view restoration permit application includes review of a "protected tree" or trees as defined in section 10-3-2900 of this title, then the reviewing authority may order the removal of the tree or trees pursuant to section 10-3-2902 of this title as part of the restorative action required by a view restoration permit.
C. Application: Application for a view restoration permit shall be in writing on a form prescribed by the director of community development and shall include, but not be limited to, the following information:
1. Proof that view owner has attempted or completed the following procedures as required in this section:
a. Initial neighbor outreach; and
b. Mediation.
2. Identification of the specific remedy sought by view owner and an estimate of cost.
3. A view restoration property survey documenting that the subject foliage is on foliage owner's property, that the foliage owner's property is within five hundred feet (500') of view owner's property, and the foliage is above the safe harbor plane.
4. A tree survey.
If an applicant does not submit the necessary information and the application remains incomplete for six (6) months after the city, in writing, deems the application incomplete, the director of community development shall deny the application without prejudice, and shall provide notice to the applicant of that determination.
Once a complete application has been received, the city shall send a formal notice of the application to the foliage owner including a copy of the application, a copy of the view restoration guidelines and a request for an invitation to staff and the reviewing authority to visit foliage owner's property with foliage owner's authorization.
D. Verification Of Information: All applicants for a view restoration permit shall submit an affidavit, signed under penalty of perjury, that the information provided in the application and other submitted documents is complete, true, and accurate based on the applicants' knowledge and reasonable investigation.
E. Public Hearing Notice: The reviewing authority shall hold a public hearing concerning each application for a view restoration permit.
Notice of any hearing held pursuant to this section shall be completed in accordance with chapter 3, article 2.5 of this title and the city's public notice guidelines.
F. Public Hearing: The director of community development or the reviewing authority may, at its discretion, require the review or additional review of any view restoration case by a qualified soils engineer, landscape architect, arborist, or other appropriate professional, based on the specific conditions of foliage owner's property. Foliage owner authorization shall be required prior to accessing the foliage owner's property. If foliage owner does not permit access to foliage owner's property, the reviewing authority shall review the case using other information as may be available, including information provided by the view owner.
G. Restrictions And Conditions: In approving a view restoration permit, the reviewing authority may impose such restrictions or conditions, including restorative action, as it deems necessary or proper to restore a protected view; protect the foliage owner's reasonable enjoyment of its property; protect the public health, safety and welfare; or any combination thereof.
H. Appeals; Effective Date: Any decision of the planning commission made pursuant to this section may be appealed to the city council by view owner or foliage owner pursuant to the provisions set forth in title 1, chapter 4, article 1 of this code. The appeal period shall commence at the date of mailing of the notice of decision.
Any decision of the planning commission made pursuant to this section takes effect fourteen (14) days from the issuance of a notice of decision unless an appeal is filed. If appealed, then the effective day is the date on which the city council acts.
I. Findings:
1. The reviewing authority may issue a view restoration permit to remove or alter foliage on any lot that is all or partly within five hundred feet (500') of a view owner's property if it makes all of the following findings:
a. The view owner has a protectable view. The reviewing authority shall determine the viewing area or areas in order to make this finding.
b. The view owner has substantially complied with the initial neighbor outreach and mediation procedures of this article.
c. The view owner's protectable view is substantially disrupted by foliage on foliage owner's property that is not exempt under section 10-8-103 of this chapter. The following criteria shall be considered in determining whether or not a protectable view is substantially disrupted:
(1) Foliage Position Within A Protectable View: Foliage located in the center of a protectable view is more likely to be found to substantially disrupt a view than foliage located on the protectable view's periphery.
(2) Foliage Size And Density: Foliage that by virtue of its size and density obstructs a large portion of a protectable view is more likely to be found to substantially disrupt the view than is foliage that obstructs only a small portion of the protectable view. Trees located in close proximity to each other and maintained in such a way as to collectively form an uninterrupted "green barrier" are more likely to be found to substantially disrupt a view than are individual trees.
(3) View Diminished By Other Factors: The extent to which the view has been or is diminished by other factors such that removal of the foliage at issue will not substantially restore the protectable view. Other factors that may be considered include, but are not limited to, permitted structures, and foliage that is not on a private property within five hundred feet (500') of the view owner's property.
d. With respect to any tree protected pursuant to section 10-3-2902 of this title, removal of the tree will not:
(1) Adversely affect the neighboring properties or the general welfare or safety of the surrounding area; or
(2) Adversely affect the garden quality of the city.
2. The reviewing authority may allow foliage to substantially disrupt a protectable view if the reviewing authority makes one or more of the following findings:
a. The foliage is important to the integrity of an existing landscape plan.
b. Alteration of the foliage will unreasonably impact the privacy and security of the foliage owner.
c. Alteration of the foliage will have a substantial adverse impact on stability of a hillside, drainage, or erosion control.
d. Restoration of the protectable view would not substantially enhance a reasonable person's enjoyment of the view owner's property taken as a whole.
J. Restorative Action: The reviewing authority may, through issuance of a view restoration permit, require restorative action on foliage owner's property. All restorative action must be performed by a licensed and bonded tree or landscape service unless mutually agreed upon by the view owner and the foliage owner. Restorative action may include, but is not limited to, the following:
1. Trimming, culling, lacing, or reducing foliage to a height or width to be determined by the reviewing authority but not below the safe harbor plane.
2. Requiring the complete removal of the foliage when the reviewing authority finds that the trimming, culling, lacing, or reduction of the foliage is likely to kill the foliage, threaten the public health, safety, or public welfare, or will destroy the aesthetic value of the foliage that is to be pruned or reduced. Removal of a healthy tree not on a list of nuisance trees maintained by the city is to be avoided unless the reviewing authority determines such removal is necessary to avoid substantial disruption of a protected view.
3. Requiring replacement foliage when the reviewing authority finds that removal without replacement will cause a substantial adverse impact on one or more of: a) the public health, safety and welfare; b) the privacy of the property owner; c) shade provided to the dwelling or property; d) the energy efficiency of the dwelling; e) the stability of the hillside; f) the health or viability of the remaining landscaping; or g) the integrity of the landscape plan.
K. Notice Of Decision:
1. Written Decision Required: The action taken by the reviewing authority shall be set forth in writing.
2. Notice Of Action: Within five (5) days after the issuance of a decision by the reviewing authority, the director of community development shall cause a copy of the decision to be mailed through the United States mail, postage prepaid, in accordance with chapter 3, article 2.5 of this title and the city's public guidelines.
The failure of the person addressed to receive a copy of the decision shall not affect the validity or effectiveness of any decision.
L. Indemnification: View owner shall defend, indemnify and hold harmless the city, its agents, officers, attorneys and employees from any claim, action or proceeding brought by a party other than the view owner against the city or its agents, officers, attorneys or employees to attack, set aside, void or annul the entitlements that may be granted by the city through issuance of a view restoration permit or that otherwise challenges, or seeks damages resulting from, the issuance, defense, implementation, or enforcement of a view restoration permit (collectively "action").
The view owner shall fulfill this obligation by depositing with the city an amount established by city council resolution and allowing that amount to be drawn upon by the city to reimburse the city for: 1) its actual costs to defend any action, and 2) any damages or penalties assessed to the city as a result of the action (collectively, the "city costs"). Alternatively, the view owner may deposit with the city security, satisfactory in form and content to the city attorney, guaranteeing reimbursement to the city of the city costs up to the amount established by city council resolution. The city shall not draw upon such deposit or otherwise be reimbursed for any city costs attributable solely to defending the legality of the provisions of this chapter. Nothing in this reimbursement obligation shall provide to the view owner any control over decisions made by the city in connection with an action.
M. Enforcement Costs: View owner shall also be responsible for reimbursing the city for any and all costs incurred in enforcing a view restoration permit through the judicial process, except for those costs of enforcement as the city may recover from a foliage owner. View owner shall not be responsible for reimbursing the city for any costs incurred prior to the initiation of a judicial process. The view owner shall fulfill this obligation by depositing with the city an amount established by city council resolution and allowing that amount to be drawn upon by the city to reimburse the city for its actual costs of enforcement. Alternatively, the view owner may deposit with the city security, satisfactory in form and content to the city attorney, guaranteeing reimbursement to the city of its enforcement costs up to the amount established by city council resolution. Nothing in this reimbursement obligation shall provide to the view owner any control over decisions made by the city or the city prosecutor in connection with the enforcement process. Additionally, nothing in this section is intended to modify the provisions of section 10-8-108 of this chapter. (Ord. 11-O-2616, eff. 1-6-2012; amd. Ord. 12-O-2627, eff. 9-23-2012; Ord. 13-O-2640, eff. 5-3-2013; Ord. 14-O-2661, eff. 6-20-2014)
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