8.28.040 Remedy for unreasonable obstruction of view or sunlight—Maximum extent of view or sunlight restoration—Informal attempt to alleviate obstruction— Complaint of obstruction—Mediation—Binding arbitration—Litigation.
A. Remedy for Unreasonable Obstruction of Preexisting View or Sunlight. As provided in this Chapter, any complainant shall have the right to seek to preserve or restore Preexisting Views from or sunlight to his or her property in the City when such views or sunlight are Unreasonably Obstructed by the growth of one or more trees, shrubs or hedges on another property in the City.
B. Maximum Extent of View or Sunlight Restoration. No view or sunlight shall be considered unreasonably obstructed for purposes of this Chapter, nor be protected under this Chapter, where the claimed view or sunlight was available only through the temporary removal, whether by accident or act of nature, of trees, shrubs or hedges which previously obstructed such view or sunlight, unless such obstruction was otherwise unreasonable. Access to a view or sunlight does not run with the land as an easement.
C. Informal Attempt to Alleviate Obstruction. Any complainant who believes that growth on another property constitutes an unreasonable obstruction shall contact the owner of that property and attempt to reach agreement on corrective work necessary to alleviate the problem.
D. Complaint of Obstruction. Any complainant who has attempted to resolve the obstruction dispute informally as required in Subsection C of this Section, and who wishes to pursue arbitration or litigation under the authority of this Chapter, must first prepare a complaint of obstruction and serve it in person or by mail on the tree owner. The complaint of obstruction shall include:
1. A description of the nature and extent of the alleged obstruction and the location, by address, of the trees, shrubs or hedges allegedly causing the obstruction;
2. A statement that good faith efforts to resolve the dispute have been unsuccessful;
3. A reasonably detailed proposal of the work required to correct the obstruction;
4. Specification of a certified arborist that the complainant will employ in the event that the work is to proceed;
5. An offer to resolve the dispute by mediation through the office of Marin mediation services program or a similar service together with a statement as to whether the complainant is willing or not willing to submit the dispute to binding arbitration if mediation fails. The respondent shall have thirty days within which to respond to the offer of mediation and if the complainant has expressed willingness to submit the matter to binding arbitration if mediation fails whether the respondent is willing or not willing to do so; and
6. A statement of the date of service of the complaint of obstruction, in person or by U.S. mail, on the tree owner.
E. Mediation. Where both parties agree to mediate the complaint of obstruction, mediation shall be scheduled on the earliest possible date. The complainant and the tree owner shall equally share the cost of the mediation. If the parties to the mediation process resolve their differences then the mediator shall reduce their agreement to writing. This agreement shall be signed by each of the parties. Performance of the terms of the agreement shall be enforceable by a court of competent jurisdiction.
F. Binding Arbitration. In those cases where mediation is declined by the tree owner or fails, and both parties agree to binding arbitration, such arbitration shall proceed as set forth below.
1. Procedure for Arbitration. Within thirty days after the unsuccessful conclusion of mediation or the agreement to arbitrate, whichever is later, the parties shall agree in writing upon a specific arbitrator. If they are unable to agree, then the parties shall request that the American Arbitration Association, or another arbitration company agreeable to all parties, select an arbitrator. In all cases, whether the arbitration is to be performed by the American Arbitration Association or by another company agreed to by the parties, the arbitration shall be conducted according to the rules of procedure of the American Arbitration Association. The complainant shall provide the arbitrator with a copy of the complaint of obstruction, and the tree owner may provide the arbitrator with a written response to the complaint prior to the date of arbitration. The arbitrator may require either party to pay for and submit a report from a certified arborist. The parties shall equally share the cost of the arbitration.
2. Report of Arbitrator. The arbitrator shall submit a complete written report to the complainant and to the tree owner. This report shall include the arbitrator’s findings with respect to the standards and guidelines set forth in Sections 8.28.070 and 8.28.080, a list of all mandated corrective actions, and a schedule by which the mandated actions must be completed. The complainant shall file a copy of the arbitrator’s report with the City Manager for informational purposes only. Any decision of the arbitrator shall be enforceable pursuant to the provisions of Code of Civil Procedure Section 1285 et seq.
G. Litigation. Where binding arbitration is not agreed upon by the parties the complainant may file a civil action in the Marin County superior court to enforce the provisions hereof provided he has complied with all prior steps required by this Chapter. Such action must be filed within one hundred eighty days after service of the complaint of obstruction on the owner of the property on which the alleged obstruction exists, or if the parties have attempted to mediate the dispute within one hundred eighty days after the date of the conclusion of mediation, whichever is later. The complainant shall file a copy of the court’s decision with the City Manager for informational purposes only. (Ord. 2016-11 § 6, 2016; Ord. 98-8 § 1, 1998.)