The following process shall be used in the resolution of preexisting view disputes between parties:
A. Initial discussions.
1. Complainant, who believes tree growth on the property of another has caused unreasonable obstruction of a preexisting view from the primary living area, shall first notify the tree owner in writing of such concerns;
2. The notification should, if possible, be accompanied by personal discussions to enable the complainant and tree owner to attempt to reach a mutually agreeable solution, and shall be followed up with a written confirmation of any agreed-upon resolution and schedule for the required work of view restoration. If personal discussions fail, then neighborhood associations may be willing to assist with the resolution of the obstruction dispute;
3. The initial notification from the complainant to the tree owner shall provide a copy of this Chapter. In the initial notification, the complainant shall invite the tree owner to view the alleged obstruction from the complainant property, and the tree owner is urged to invite the complainant to view the situation from the tree owner’s property. Failure of the tree owner to respond to the written request for initial discussion within thirty (30) days after the date of the posting shall be deemed a refusal by the tree owner to participate in the initial discussion phase of the process; and
4. After the initial discussion, if the parties do not agree as to the existence and nature of the complainant's obstruction or to the appropriate restoration action, or if the initial discussion is refused, the complainant may proceed with the subsequent dispute resolution process outlined herein with respect to tree claim preparation, mediation binding arbitration, and litigation.
B. Tree claim preparation. In the event the initial discussion process fails to resolve the dispute, the complainant must prepare a tree claim, and provide a copy to the tree owner, in order to pursue mediation, binding arbitration, or litigation under the authority established by this Chapter. A tree claim shall consist of all of the following:
1. Evidence of preexisting view. A written description of the nature and extent of the alleged obstruction, including pertinent and documentable physical evidence. Evidence may include, but is not limited to, photographic prints, negatives or slides, as well as written testimony or declarations from residents living in the area. Such evidence must prove the absence of the obstruction at any documentable time during the tenure of complainant. Evidence confirming the ownership and the date of property acquisition of the complainant’s property must be included;
2. Evidence regarding unreasonable tree blockage. 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. Evidence of attempted resolution. Evidence that an initial discussion, as described in § 9.12.045A., to resolve the dispute has been made and has failed. The complainant must provide physical evidence that written attempts at reconciliation have been made and have failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence; and
4. Desired action. Specific view restoration actions proposed by the complainant to resolve the unreasonable view obstruction.
C. Mediation.
1. If the initial discussion attempt fails, then the complainant shall send to the tree owner a written request to participate in a mediation process as a timely means to settle the obstruction dispute;
2. Acceptance of mediation by the tree owner shall be voluntary, but the tree owner shall have no more than thirty (30) days after service of notice to either accept or reject the offer of mediation. Failure to respond shall be deemed formal refusal of the mediation process. If mediation is accepted, then the parties shall mutually agree in writing to the selection of a mediator;
3. It is recommended the services of a professionally trained mediator be employed;
4. The mediation meeting may be informal. The mediation process may include the hearing of viewpoints of lay or expert witnesses, and shall include a site visit to the properties of the complainant and the tree owner. Parties are encouraged to contact immediate neighbors and solicit input; and
5. The mediator shall consider the purposes and policies set forth in this Chapter in attempting to help resolve the dispute. The mediator shall not have the power to issue binding orders for restoration action, but shall strive to enable the parties to resolve their dispute by written agreement, in order to eliminate the need for binding arbitration or litigation.
D. Binding arbitration.
1. In those cases where the initial discussion process fails and where mediation is declined by the tree owner or has failed to resolve the complainant's complaint, the complainant must offer in writing to submit the dispute to binding arbitration.
2. Acceptance of binding arbitration by the tree owner shall be voluntary. The tree owner shall have thirty (30) days after service of notice to accept or reject binding arbitration. Failure to respond shall be deemed a formal refusal of binding arbitration. If accepted, the parties shall agree on a specific arbitrator and shall indicate such agreement in writing; and
3. The arbitrator shall use the provisions of this Chapter to reach a fair resolution of the tree claim, and shall submit a complete written report to the complainant and the tree owner. This report shall include the arbitrator's findings with respect to §§ 9.12.025 and 9.12.030 of this Chapter, a pertinent list of all mandated restoration actions, with any appropriate conditions concerning such actions, and a schedule by which the actions must be completed. Upon completion, a copy of the arbitrator's report shall be filed with the City Clerk. Any decision of the arbitrator shall be enforceable pursuant to the provisions of Cal. Code Civ. Proc. §§ 1280 et seq.
E. Litigation.
1. In those cases where binding arbitration is declined by the tree owner, then civil action may be pursued by the complainant for resolution of the view obstruction dispute under the rights and provisions of this Chapter; and
2. The litigant must state in the lawsuit that binding arbitration was offered and not accepted, and a copy of the lawsuit was filed with the City Clerk. A copy of any order or settlement in the lawsuit shall also be filed with the City Clerk.
(Ord. No. 2006-002 § 1 (part))