Kucera v. Lizza

• Decision Date: 08 December 1997
• Docket Number: No. A075859,A075859
• Citation: 59 Cal.App.4th 1141,69 Cal.Rptr.2d 582
• Parties: , 97 Cal. Daily Op. Serv. 9190, 97 Daily Journal D.A.R. 14,787 Gilbert KUCERA et al., Plaintiffs and Appellants, v. Tiberio LIZZA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 582

69 Cal.Rptr.2d 582

59 Cal.App.4th 1141, 97 Cal. Daily Op. Serv. 9190,

97 Daily Journal D.A.R. 14,787

Gilbert KUCERA et al., Plaintiffs and Appellants, v. Tiberio LIZZA, Defendant and Respondent.

No. A075859.

Court of Appeal, First District, Division 2, California.

Dec. 8, 1997.

Rehearing Denied Jan. 7, 1998.

Review Denied Feb. 25, 1998.

Bruce C. Osterman, David Edward May, San Francisco, for Plaintiffs and Appellants.

Ann R. Danforth, Tiburon, Gary T. Ragghianti, City Attorney, Lisa A. Goldfien, Deputy City Attorney, for Amicus Curiae on behalf of Plaintiffs and Appellants.

Brekhus, Williams, Wester & Hall, Peter B. Brekhus, Greenbrae, Linda J. Philipps, Salinas, for Defendant and Respondent.

LAMBDEN, Associate Justice.

We consider the validity of an ordinance of the Town of Tiburon which preserves views and sunlight against unreasonable obstruction by tree growth. Gilbert and Heidi Kucera, owners of an apartment building, used the ordinance to attempt resolution of a dispute with neighboring apartment building owner Tiberio Lizza over eight Monterey Pines which had grown to obstruct their view. Reaching no resolution through less formal procedures dictated by the ordinance, they brought this superior court action against Lizza, also under the ordinance, to compel restoration of their views.

The case presented the trial court with issues of whether the obstruction was unreasonable under the ordinance and, more fundamentally, whether the ordinance was invalid. In a bifurcated trial on stipulated facts, the court gave judgment for Lizza on the latter ground. It held the ordinance unconstitutional and "void" as (1) preempted by state law governing the creation of servitudes and land burdens, and (2) an arbitrary and unreasonable exercise of the police power.

The Kuceras appeal, supported in their arguments by friend of the court briefs from the Town of Tiburon ("Tiburon" or "the town") and the City of Belvedere, Tiburon's brief being joined by 71 other California cities. ¹

BACKGROUND

The ordinance

The ordinance, entitled "View and Sunlight Obstruction from Trees," comprises chapter 15 of the Tiburon Municipal Code (hereafter cited only by section). Its purpose is to establish "the right of persons to preserve views or sunlight which existed at any time since they purchased or occupied a property from unreasonable obstruction by the growth of trees" (§ 15-1.A.) and "a process" to seek "restoration" of views and sunlight (§ 15-1B).

Supporting findings or "principles" include these: "residents, property owners, and businesses cherish their outward views from the Tiburon Peninsula, and ... cherish the benefits of plentiful sunlight reaching their buildings and yards" (§ 15-1.1.); "outward views and plentiful sunlight reaching property contribute greatly to the quality of life in Tiburon, and promote the general welfare of the entire community" (ibid.); desires for "beautiful and plentiful landscaping" occasion inevitable conflicts (§ 15-1.2.); owners and residents "should maintain trees on their property in a healthy condition for both safety reasons and for preservation of sunlight and outward views" (§ 15-1.3.); a process for resolving disputes, and guidelines for preserving and restoring views and sunlight, are needed (§ 15-1.4.); parties to disputes "should act reasonably to resolve [them] through friendly communication, thoughtful negotiation, compromise, and other traditional means" before resorting to the procedures established in the ordinance (§ 15-1.5.).

The ordinance grants persons "the right to preserve and seek restoration of views or sunlight which existed at any time since they purchased or occupied a property, when such views or sunlight are from the primary living area or active use area and have subsequently been unreasonably obstructed by the growth of trees." (§ 15-3.) Concomitantly, "No person shall plant, maintain, or permit to grow any tree which unreasonably obstructs the view from, or sunlight reaching, the primary living area or active use area of any other parcel of property" within the town (§ 15-4(a)), and "[b]ecause the maintenance of views and sunlight benefits the general welfare" of the town, such obstruction also constitutes "a public nuisance" (§ 15-4(b)). Prescribed procedures must be followed to establish rights under the ordinance, but private parties also retain their "right to seek remedial action for imminent danger" caused by trees. (§ 15-3.)

The ordinance defines pertinent terms. Among them: "View" generally means a medium or long-range view; "Sunlight" means direct or indirect light; "Tree" includes not just trees in the usual sense, but shrubs, hedges and bushes which might obstruct views or sunlight; a "Primary Living Area" is a part of a residence from which views are observed most often; an "Active Use Area" is a most-frequently-occupied portion of a commercial building from which views are available. (§ 15-2.)

Criteria for determining what constitutes an "unreasonable obstruction" take into account the extent of preexisting views and their obstruction, now and at tree maturity, the quality of those views, any interference with preexisting solar energy systems and the extent to which factors other than tree growth are responsible. (§ 15-5.)

"Restorative Action" means any specific requirement to resolve a tree dispute (§ 15-2) and contemplates a progression of actions designed to produce the least intrusive solution. The specified hierarchy, least to most intrusive, is: trimming; thinning (removal of branches to improve visibility) or windowing (creation of openings through thinning); topping; removal with replacement plantings; and removal without replacement. (§§ 15-2, 15-7.) The maximum limit of restorative action is "the documentable extent of view or sunlight existing at any time during the tenure" of the complaining owner or occupant, and the health of any affected tree must be Restorative action is also affected by the type of tree. To alter or remove a "Protected Tree"--heritage (specified trunk circumference), oak (specified varieties) or dedicated (through resolution of the town council)--requires a permit (§ 15-8) and is disfavored under the governing criteria (§ 15-6(I)). By contrast, the ordinance favors "aggressive action" for "Undesirable Trees": "By reason of their tall height at maturity, rapid growth, dense foliage, shallow root structure, flammability, break ability, or invasiveness, certain types of trees have been deemed 'undesirable' by the Town, including Blue Gum Eucalyptus, Coast Redwood, Monterey Pine, Monterey Cypress trees, or any other tree which generally grows more than 3 feet per year in height and is capable of reaching a height of over 35 feet at maturity. When considering restorative action for 'undesirable' trees, aggressive action is preferred." (§ 15-8.)

                considered.  (§ 15-7.)   In addition, restorative action "may include written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest...."  (Ibid.)
                

Criteria for appropriate restorative action also call for consideration of any hazard the tree poses (e.g., fire or falling limbs), its growth rate and maintenance requirements, its aesthetic qualities and location, soil stability, privacy and wind screening, energy con-servation and climate control, and wildlife habitat. (§ 15-6.) Other guidelines stress the tree's protected or undesirable status, the avoidance of stump growth, the action hierarchy already noted (ante ), and maintenance (ongoing maintenance requirements "are strongly recommended ... in order to achieve lasting preservation" of views or sunlight). (§ 15-8.) The guidelines also provide: "Permanence. Conditions of Restorative Action should be recorded and run with the land to help guarantee permanent preservation of pre-existing views and sunlight." (Ibid.)

The ordinance imposes a progression of informal and alternative dispute resolution before resort to litigation. "Initial Reconciliation" calls for written notice to and personal discussions with the tree owner plus community association assistance, the aim being a mutually agreeable solution. Failing in that, the party must propose voluntary mediation, which is informal and cannot yield binding orders under the ordinance. (§ 15-9.) Should mediation fail or be declined by the tree owner, the party must present the owner with a written claim containing specified evidence and proposed restorative action (§ 15-10) and offer voluntary, binding arbitration. The aim is a written report by the agreed arbitrator containing findings on unreasonable obstruction and restorative action. (§ 15-11.) Costs of mediation and arbitration are shared equally unless the participants agree otherwise or empower the mediator or arbitrator to allocate costs. Costs of restorative action are set by mutual agreement, mediation or arbitration, as the case may be. (§ 15-13.)

Should the owner decline binding arbitration, "then civil action may be pursued by the Complaining Party for resolution of the view or sunlight obstruction dispute under the rights and provisions of this Chapter." (§ 15-12) Copies of "the lawsuit" and any order or settlement are filed with the town attorney (§ 15-12), and costs of litigation and restorative action are determined by the court or by settlement (§ 15-13). The facts

According to the stipulated facts, Lizza purchased his property in 1978 and the Kuceras theirs in 1990. Lizza's is across the street and downhill from the Kuceras', and trees on his property have grown, since the Kuceras purchased their property, to obstruct their views of San Francisco Bay and the Marin County mainland from primary living or active use areas. The ordinance was passed in December 1991. The Kuceras initiated the ordinance's informal dispute resolution process in June 1992 and have...