AGENDA ITEM #1.

CITY OF MEDINA
501 Evergreen Point Road, Medina WA 98039
425.233.6400 (phone) 425.451.8197 (fax) www.medina-wa.gov

MEMORANDUM
To: Planning Commission

From: Robert Grumbach, AICP

Date: October 24, 2017

Subject: Discussion of View and Sunlight Issues

During the September 26 public hearing, several issues were raised about the proposed
new view and sunlight obstruction provisions. The following is a discussion of these
issues.

1. Whether a view-owner could be precluded from filing a complaint if they transferred

ownership to a trust.

A concern was raised that a view-owner may be precluded from using the hearing
examiner system if the owner transferred the property into a trust or other legal entity
for tax or estate planning purposes. Important here are the definitions of
complainant and owner, real property as these establish who might have a right to
file a view or sunlight obstruction complaint. Complainant refers to an owner of real
property in the City of Medina. Owner, real property refers to a person who has legal
or equitable title to real property. The terms legal and equitable are significant as
they include persons who not only actually own the land, but also includes persons
who have financial interest. This means transferring ownership to a trust or LLC does
not preclude a persons ability to pursue a complaint. Whether the person can argue
for a pre-existing view that is now obstructed after transferring ownership is a narrower
question discussed below under Item 2.

2. Whether the date for claiming a pre-existing view resets if a person transfers their
ownership of the land to a trust or LLC.

A concern was voiced on whether someone could lose their claim to a pre-existing
view if they transferred ownership of the land to a trust or LLC after the view had
become obstructed. The draft presented at the public hearing created some confusion
as Section 8.08.050 established a right to views existing after purchase while Section
8.08.150 had mixed references (most of the criteria referred to views existing after
acquisition of the property and criterion (A)(3) referred to after purchase of the
property). The purchase language could have an unintended consequence of limiting
actions to parties that acquired the land by purchase only and excluding those who
acquired the land by other actions.
1

View and Sunlight Obstruction - continued discussion Page 8 of 38

 AGENDA ITEM #1.

To address the confusion, the code language was revised to say, after taking
ownership This provides the hearing examiner some flexibility with interpreting
ownership and timelines without precluding the hearing examiner from considering if
the land was transferred into a trust or LLC.

3. Whether trees in the City right-of-way can be subject to the same view and sunlight
provisions as a neighbors trees.

It is important to recognize that Chapter 8.08 is intended only as a dispute-resolution

process for view and sunlight complaints. As such, it is designed to allow two parties
to interact with minimal, if any, public involvement. Trees in the public right-of-way,
on the other hand, involve the public. They are owned in common by the public and
they contribute significantly to the informal natural setting prescribed in the
comprehensive plan. The public ownership of right-of-way trees makes them different
than trees that are owned on private property.

Additionally, Chapter 20.52 already contains a process for seeking removal of trees
in the public right-of-way. Included in the list of right-of-way trees that can be removed
are trees that unreasonably obstruct a pre-existing view. A property owner must only
satisfy the criteria to have a tree in the right-of-way removed. Like the removal of
other trees in the public right-of-way, a permit is required, but this is so that the public
interest can be accounted for through public noticing and comment periods.

4. Whether the permitting requirements for removing a right-of-way tree can be simplified
if everyone agrees.

A concern was raised about the time and cost required to remove trees in the public
right-of-way. Except for hazard trees, all removals of trees in the public rights-of-way
require public noticing to account for the public interest. Without noticing, it is
impossible to know with certainty if the public supports the removal since the public
would likely be unaware until the tree is removed. Yet to help offer a simpler process,
the current requirement for a non-administrative right-of-way tree activity permit may
be modified to allow for an administrative right-of-way tree activity permit if no
objection is received during the public comment period (this is presented in the box
as an alternative in the Planning Commission recommendation). If an objection is
received, then the non-administrative right-of-way tree activity permit would apply.
The administrative right-of-way tree activity permit is a less expensive permit that is
decided administratively by staff after a public comment period.

5. Whether a property owner becomes entitled to file a view complaint any time their
neighbor temporarily trims or removes foliage (such as a dead tree) from their
property.

This issue raises a fundamental policy question regarding the scope of this proposal
and whether we want to narrow down what complaints might be filed. For example,
the code could be modified to limit complainants rights to the time when ownership is
taken. This was suggested in the testimony at the public hearing. However, this too
2

View and Sunlight Obstruction - continued discussion Page 9 of 38

 AGENDA ITEM #1.

may create some uncertainty if the view-owner sells to a new owner who happens to
have the view when they take ownership, but is unaware of the circumstances that
created that view.

The fundamental policy upon which the new Chapter 8.08 is based was to open more
opportunities for view and sunlight disputes to be resolved. To do this, the proposed
code expanded the scope of what might constitute a view or sunlight obstruction and
broaden the criteria for determining whether an obstruction is unreasonable. The
proposed code allows for a broader range of complaints to be filed, but it gives the
hearing examiner the tools and flexibility necessary to judge each complaint
individually based on the facts presented. Central to implementing this policy is a
trust that if the hearing examiner can properly consider all facts, such as the view was
created temporarily because the tree died, if we avoid limiting what can be considered,
the hearing examiner should be able to make reasonable decisions that are fair and
consistent with the law.

In posing the example to the hearing examiner of a temporary view being created by
removal of a dead tree, this was the hearing examiners response:

You describe a scenario where a lot owner, who becomes a complainant under
your proposed code, does not have a view at the time he takes ownership of the
property, but obtains a view because a tree dies and is removed. If that tree is
replanted, it raises a question as to whether it is an unreasonable obstruction to
a view; a determination that would be made by the Hearing Examiner.
If there is a right to a view or access to sunlight, however it is established, then
the hearing examiner could become involved in deciding if that view is blocked by
an unreasonable obstruction. We must do this after CONSIDERING the five
criteria you cite in proposed ordinance Section 150. Those five 'factors', as they
are called in the proposed ordinance, are not exclusive and do not require a
finding for each one. Rather, it merely requires the Hearing Examiner to consider
those factors. The proposed ordinance does not require us to abandon common
sense. A Hearing Examiner could also consider other factors. In your scenario,
for example, the Hearing Examiner could determine it to be a reasonable action
to replant a tree that was there at the time the complainant obtained the property,
and thus deny the complaint. The proposed code, as drafted, would allow this
result as much discretion is given to the Hearing Examiner. Thus, I believe the
proposed code, while not addressing every possible scenario, allows sufficient
discretion to the Hearing Examiner to arrive at a just outcome consistent with the
law.

Thus, staff believes the current proposal with the most recent changes for clarity can
achieve making this dispute-resolution process more widely available to residents,
while at the same time creating sufficient safe-guards where outcomes are reasonable
and consistent with the law.

View and Sunlight Obstruction - continued discussion Page 10 of 38

 AGENDA ITEM #1.

6. Whether the city can advocate for a property owner filing a view-obstruction complaint
by making view obstructions a nuisance.

The nuisance approach has been previously discussed extensively. The judicial
courts hold the power to adjudicate private nuisances. In the absence of a state law,
the hearing examiner cannot have the authority to decide private nuisances.

7. Whether fines assessed against respondent would be the responsibility of the

complainant if the respondent did not pay.

The answer in short is no. The complainant is responsible for all costs associated
with pursuing an unreasonable view obstruction complaint. The complainant is also
responsible for all restorative costs ordered by the hearing examiner. However, if
fines are assessed pursuant to Section 8.08.200, this is due to a finding of a civil
violation for failing to comply with a hearing examiners order. These fines are
assessed specifically against the violator. If the violator fails to pay fines, the City has
the methods authorized for collecting monetary penalties available under MMC
1.15.340.

8. Whether a respondent may be required to obtain multiple bids for restorative

services.

The City Attorney researched this question and found no legal precedent on this
exact question. However, it probably does not create a new legal risk because it
does not inappropriately expand the hearing examiners authority or impose an
unconstitutional burden on the respondent (the hearing examiner is not applying
damages). A new Subsection 8.08.140(C) was added to the proposal making it clear
that the hearing examiner can consider requiring the respondent to obtain multiple
cost estimates for restorative work. However, this was not made mandatory in
keeping with the broad discretion given to the hearing examiner to adjudicate these
disputes.

View and Sunlight Obstruction - continued discussion Page 11 of 38

 AGENDA ITEM #1.

CITY OF MEDINA
501 Evergreen Point Road, Medina WA 98039
425.233.6400 (phone) 425.451.8197 (fax) www.medina-wa.gov

MEMORANDUM
To: Planning Commission

From: Robert Grumbach, AICP

Via: Leilani Fisher, Assistant City Attorney

Date: October 24, 2017

Subject: Comparison of key substantive changes view and sunlight

Note: This is from the September 26 staff report.

CHANGE CURRENT ORDINANCE PROPOSED ORDINANCE

(MMC 18.16) (MMC 8.08)

PURPOSE: To provide a voluntary dispute To provide a local administrative

resolution mechanism. process for dispute resolution.

RIGHTS Creates a civil cause of action for Creates a right to preserve or

ESTABLISHED: view/sunlight obstructions. restore view/sunlight via hearing
examiner process.

WHEN MAY VIEW View from primary View from primary

RESTORATION BE living/entertainment area existed
SOUGHT: since purchasing property and
more than 60% of view is obscured
by trees within 300 ft. of
fence/living area.
living/entertainment area existed
since purchasing property and is
now unreasonably obstructed by
vegetation or trees.

WHEN MAY Access to sunlight existed after Access to sunlight existed since
SUNLIGHT purchasing property and is blocked purchasing property and is now
RESTORATION BE by threes within 50 ft. of unreasonably obstructed by
SOUGHT: complaints property line. vegetation or trees.

UNREASONABLE Percentage of view obscured Extent of obstruction

OBSTRUCTION Quality of view
EVALUATION Whether tree causes shade
CRITERIA: Benefits of the tree
Effect on nearby vegetation
Visual quality of the tree
Adverse effect of removal
Quality of view
Reasonable foreseeability
Whether other factors contribute
to obstruction
If removal/pruning will infringe on
respondents privacy
If foliage that causes obstruction
of sunlight is within 50 ft. of
complainants property

View and Sunlight Obstruction - continued discussion Page 12 of 38


LIMITS ON RELIEF: Relief must
Be the least invasive procedure
Improve view/sunlight access
Use removal only as last resort
Use pruning only sparingly in
accordance with city pruning
standards
WHO HEARS Mediator, arbitrator, or judge.
COMPLAINT:
PROCESS FOR Complainant must....
SEEKING Notify respondent in writing of
RESTORATION: concerns
Propose mediation, which
respondent may decline
Prepares a tree claim
Pursue arbitration, which
respondent may decline
Pursue litigation
EFFECT OF FINAL An unreasonable obstruction
DETERMINATION: constitutes a private nuisance.
ENFORCEMENT: The city has no right or obligation
to enforce.
COSTS: Complainant and tree owner split
mediation or arbitration costs 50/50
Restorative costs determined by
agreement or
mediation/arbitration/litigation
Complainant must pay for
replacement tree, which
respondent chooses
View and Sunlight Obstruction - continued discussion
AGENDA ITEM #1.
Relief must
Comply with standards of MMC
20.52
Hearing examiner considers
Extent of obstruction from primary
living/entertainment area
View features obstructed
If shade from respondents foliage
affects foliage on complainants
property
Benefits of the foliage
The availability of less invasive
restorative action
Interference with respondents
use and enjoyment
Hearing examiner.
Complainant must....
Notify respondent in writing of
concerns and propose restorative
action
File an unreasonable obstruction
complaint with hearing examiner
Attend a hearing examiner
hearing and present evidence
Hearing examiner issues land use
decision under RCW 36.70C.020.
The city has a right, but no
obligation to enforce
Complainant may file petition for
noncompliance with hearing
examiner
Noncompliance order constitutes
a civil violation subject to
automatic penalties
Complainant pays all costs
Page 13 of 38
 AGENDA ITEM #1.

CITY OF MEDINA
501 Evergreen Point Road, Medina WA 98039
425.233.6400 (phone) 425.451.8197 (fax) www.medina-wa.gov

MEMORANDUM
To: Planning Commission

From: Robert J. Grumbach, AICP

Date: July 25, 2017

Subject: View and sunlight obstruction ordinance update

This memorandum addresses concerns that have been voiced by commission members
and other Medina residents regarding the proposed view and sunlight ordinance. Based
on extensive legal research, and considering input received from Medinas hearing
examiner, staff and legal counsel have found answers to the following questions raised
during the June 27th meeting:
Is there precedent in any jurisdiction (especially California) to possibly justify imposing
costs on respondents who unfairly harm their neighbors by obstructing views and
access to sunlight?
No. Ordinances involving view and sunlight obstructions are very rare outside of
Washington and California, and there is no legal justification even in Washington or
California for imposing costs on a person who obstructs their neighbors view or access
to sunlight.
California laws regarding view and sunlight rights are somewhat at odds with Washington
law. Yet the best precedent in any jurisdiction is a view ordinance in Tiburon, CA that was
initially deemed unconstitutional by a trial court and later upheld on appeal as
constitutional. Kucera v. Lizza, 59 Cal.App.4th 1141 (1997). The ordinance encourages
but does not require respondents to participate in mediation or arbitration, and it provides
that respondents should share mediation costs only if they choose to participate. The
ordinance does not impose any involuntary costs whatsoever on respondents. Nor does
it allow an examiner to award damages or issue orders for restorative action. The only
other view ordinance that was upheld as constitutional in California does not impose any
costs or damages on respondents. The ordinance expressly required complainants/view-
owners to bear all restorative and other costs. Echevarrieta v. City of Rancho Palos
Verdes, 103 Cal.Rptr.2d 165 (2001).
This research has reaffirmed that the view ordinance will probably be illegal for several
reasons if it requires respondents to pay damages or restorative costs. It will probably
violate the constitutional takings clause and the due process clause. See Guimont v.
Clarke, 121 Wash.2d 586; Edmonds Shopping Center, 117 Wn. App. 364. It will also
probably violate the constitutional Separation of Powers Doctrine, which precludes the
city from giving the hearing examiner too much adjudicatory power. See City of Spokane
v. J-R Distributors, 585 P.2d 784 (Wash. 1978); Massie v. Brown, 527 P.2d 476 (Wash.
1974).

View and Sunlight Obstruction - continued discussion Page 14 of 38

 AGENDA ITEM #1.

What are the consequences of the private nuisance language found in 8.08.180?
The private nuisance language would not make the hearing examiners decision legally
binding in court, but would probably compel the court to apply a common law private
nuisance analysis. This analysis involves weighing a view-owners interests against their
neighbors property interests and determining if the parties conduct was reasonable.

Because the purpose of this ordinance is to create a local mechanism for resolving view
and sunlight obstruction disputes not to declare that view obstructions are a nuisance
all nuisance language has been removed.
Does the mediation requirement impose unnecessary costs on complaints?
The mediation requirement has been removed as a requirement. Parties are encouraged
to use mediation, but are not required. The removal was based on the theory that if
neighborhood reconciliation doesnt work, it is unlikely both parties would agree to
mediate. Additionally, with the hearing examiner having the authority to decide a dispute,
the incentive to work things out before the hearing examiner are greater.

View and Sunlight Obstruction - continued discussion Page 15 of 38

 AGENDA ITEM #1.

MEDINA PLANNING COMMISSION

A RECOMMENDATION OF THE PLANNING COMMISSION OF

THE CITY OF MEDINA, WASHINGTON, TO REPEAL CHAPTER 18.16 OF
THE MEDINA MUNICIPAL CODE (TREES VIEW AND SUNLIGHT OBSTRUCTION);
AND TO ADOPT A NEW CHAPTER 8.08 OF THE MEDINA MUNICIPAL CODE
PERTAINING TO VIEW AND SUNLIGHT OBSTRUCTION BY TREES AND OTHER FOLIAGE

WHEREAS, pursuant to the Growth Management Act (GMA), chapter 36.70A RCW, the
City Council has adopted the City of Medina Comprehensive Plan, which provides a vision of
Medina residents, and supporting goals and policies, for maintaining and preserving the high-
quality residential setting character of the community; and

WHEREAS, the Community Design Element (Chapter 3) of the Medina Comprehensive

Plan sets forth the quality of Medinas neighborhood development as distinct and enhanced by a
combination of natural and built features including proximity of the lake shore, views, narrow
streets with extensive mature landscaping, and large tracts of public and private open space
which can be seen from residential lots and City streets; and

WHEREAS, the Medina Comprehensive Plan states that it is important that citizens be
sensitive to the impact that altering or placing trees may have on neighboring properties; and
that trees can disrupt existing and potential views and access to sun; and

WHEREAS, the Medina Comprehensive Plan sets forth in Policy CD-P4 for residents to
consult with the City and their neighbors on both removal and replacement of trees and tree
groupings to help to protect views and to prevent potential problems; and

WHEREAS, the City Council adopted Ordinance No. 575 on March 13, 1995,
establishing the right to preserve and seek restoration of views or sunlight, which existed at any
time since purchase or occupancy of a property, when such views or sunlight are from a primary
living or entertainment area and have subsequently been unreasonably obstructed by the
growth of trees, and establishing a process for private property owners to resolve disputes; and

WHEREAS, Ordinance No. 575 was repealed by Ordinance No. 801 on March 26, 2007,
and the City Council adopted Ordinance No. 816 on October 8, 2007, re-establishing rights to
view and sunlight and a process for private property owners to resolve disputes involving views
and access to sunlight obstructed by trees; and

WHEREAS, Ordinances No. 575 and No. 816 provided if attempts to resolve view and
sunlight obstruction disputes outside of court failed, an aggrieved property owner could initiate a
civil action in a court of competent jurisdiction to settle the dispute; and

WHEREAS, during the 2014 Phase Two amendments to the Medina Tree Code,
Chapter 20.52 MMC, public testimony was presented to the City Council regarding complaints
about the growth of trees causing view obstructions; and

WHEREAS, the City Council discussed view and sunlight obstructions at their December
8, 2014, regular meeting and tabled the discussion, due to the different public interests the tree
code and the view and sunlight obstruction code intended to achieve, until after completion of
the second phase of amendments to the Medina Tree Code; and

PCRecommendationViewandSunlight

View and Sunlight Obstruction - continued discussion Page 16 of 38

 AGENDA ITEM #1.

ATTACHMENT A

WHEREAS, after completing the second phase of amendments to the Medina Tree
Code, the City Council discussed view and sunlight obstructions at their April 11, 2016, regular
meeting and indicated support for developing a local process for resolving disputes involving
trees and other foliage blocking views and access to sunlight; and

WHEREAS, at the April 11, 2016, regular meeting, the City Council voted to add
amending the view and sunlight obstruction regulations to the Planning Commission Work
Program; and

WHEREAS, the Planning Commission held public meetings on April 26, November 22,
and December 6, 2016, and February 15, May 23, June 27, July 25, August 22, 2017, and
October 24, 2017, to discuss amendments to the view and sunlight obstruction regulations; and

WHEREAS, RCW 35A.63.170 grants the City Council the power to adopt a hearing
examiner system to conduct quasi-judicial hearings in land use matters; and

WHEREAS, the City Council adopted Ordinance No. 701, and last amended by
Ordinance No. 935, establishing a hearing examiner system under Chapter 2.78 of the Medina
Municipal Code, which provides the hearing examiner with powers and duties consistent with
RCW 35A.63.170; and

WHEREAS, the City wishes to establish a local process using the hearing examiner to
decide disputes involving view and sunlight obstructed from foliage from trees and other
vegetation; and

WHEREAS, in accordance with RCW 36.70A.106, a notice of intent to adopt

amendment was transmitted to the Washington State Department of Commerce on
September 1, 2017 (Material ID # 24087); and

WHEREAS, a State Environmental Policy Act (SEPA) threshold Determination of

Nonsignificance (DNS) for the proposed code amendment was issued on September 6, 2017,
pursuant to WAC 197-11-340(1); and

WHEREAS, notice of the Planning Commissions public hearing was published in The
Seattle Times on September 6, 2017, in accordance with the content set forth in MMC
20.83.120, and posted to the Citys notice boards and website on September 6, 2017; and

WHEREAS, the Planning Commission held a public hearing on September 26, 2017, to
receive testimony regarding proposed code amendments to the MMC; and

WHEREAS, the planning commission considered the proposal, public comments, and
other available information, and voted on the proposed amendments.

NOW THEREFORE, BE IT ADVISED THAT THE PLANNING COMMISSION RECOMMENDS

THE FOLLOWING:

Section 1. Repeal Chapter 18.16 MMC. Chapter 18.16 of the Medina Municipal Code
is recommended to be hereby repealed.

Section 2. Adopt Chapter 8.08 MMC. Chapter 8.08 of the Medina Municipal Code is
recommended to be hereby adopted as set forth in Attachment A.

PCRecommendationViewandSunlight 2of12

View and Sunlight Obstruction - continued discussion Page 17 of 38

 AGENDA ITEM #1.

ATTACHMENT A

Section 3. Amend MMC 20.50.040. Section 20.50.040 of the Medina Municipal Code
is recommended to be amended to read as follows:

4. Select Vegetation Removal Activities. The following limited vegetation removal activities are
allowed in critical areas and buffers. Otherwise, removal of any vegetation or woody debris
from a critical area shall be prohibited unless the action is part of an approved alteration.
a.
c. Trimming of vegetation for purposes of providing view corridors will be allowed;
provided:
i. It is consistent with Chapters ((18.16))8.08 and 20.52 MMC and that trimming shall
be limited to view corridors of 20 feet in width or less;
ii. The limbs involved do not exceed three inches in diameter;
iii. Not more than 25 percent of the live crown is removed;
iv. Benefits to fish and wildlife habitat are not reduced;
v. Trimming is limited to hand pruning of branches and vegetation; and
vi. Trimming does not include felling, topping, stripping, excessive pruning or removal of
trees.
d.

Section 4. Amend MMC 20.52.400. Section 20.52.400 of the Medina Municipal Code
is recommended to be amended to read as follows:

D. Removal of a city tree located within an open or closed city right-of-way may be allowed for
the following:
1. Hazard trees designated pursuant to MMC 20.52.200;
2. Nuisance trees designated pursuant to MMC 20.52.210;
3. Trees not suitable under utility lines, or in the city right-of-way, as prescribed in the City
of Medina List of Suitable Tree Species;
4. Any tree having less than a 10-inch diameter breast height size; and any trees not
included on the City of Medina Suitable Tree Species List for the right-of-way having
less than a 36-inch diameter breast height size;
5. Trees where pruning and trimming for utilities caused significant defects to the primary
stem of the tree resulting in significant abnormal growth;
6. Trees where removal is necessary to allow vehicle access to a property;
7. Trees where removal is necessary to preserve or restore a view ((significantly))
unreasonably obstructed by the tree provided ((of)) the following criteria are satisfied:
a. The owner of the adjoining property to the subject tree accept allowance to have the
tree removed)) agrees to the trees removal and the director finds that removal of the
tree is consistent with the Comprehensive Plan and tree management goals;
b. ((The person claiming the view obstruction establishes the tree causes an
unreasonable view obstruction using the provisions established in MMC 18.16.040
through 18.16.080)) Approval of a non-administrative right-of-way tree activity permit
is obtained pursuant to the requirements in MMC 20.72.090, and during
consideration of the permit the hearing examiner finds that an unreasonable view
obstruction as defined in MMC 8.08.070 exists; and
c. ((The approval of a nonadministrative right-of-way activity permit is obtained pursuant
to MMC 20.72.090.)) The tree is not a legacy tree pursuant to MMC 20.52.120.

PCRecommendationViewandSunlight 3of12

View and Sunlight Obstruction - continued discussion Page 18 of 38

 AGENDA ITEM #1.

ATTACHMENT A

APPROVED BY THE PLANNING COMMISSION ON THIS 26TH DAY OF SEPTEMBER 2017.

_____________________________
Planning Commission Chair

Attest

______________________________
Robert J. Grumbach
Director of Development Services

PCRecommendationViewandSunlight 4of12

View and Sunlight Obstruction - continued discussion Page 19 of 38

 AGENDA ITEM #1.

ATTACHMENT A

Chapter 8.08
VIEW AND SUNLIGHT OBSTRUCTIONS

8.08.010 Introduction.
8.08.020 Findings.
8.08.030 Purpose.
8.08.040 Definitions
8.08.050 Rights established.
8.08.060 Not eligible under this chapter.
8.08.070 Unreasonable obstruction.
8.08.100 Process for resolving view and access to sunlight disputes.
8.08.110 Neighbor reconciliation.
8.08.120 Unreasonable obstruction complaint.
8.08.130 Unreasonable obstruction complaint hearing.
8.08.140 Hearing examiners determination.
8.08.150 Unreasonable obstruction evaluation criteria.
8.08.160 Unreasonable obstruction limitations on restorative action.
8.08.170 Compliance with city codes required.
8.08.180 Effect of a determination of an unreasonable obstruction.
8.08.190 Allocation of costs.
8.08.200 Enforcement
8.08.210 Limitation on application.
8.08.220 No duty to abate.

8.08.010 Introduction

This chapter provides a local administrative process for the resolution of disputes involving
preserving views and access to sunlight between Medina neighbors. When a view or access to
sunlight dispute arises, it is suggested that the parties first make good faith efforts to resolve the
dispute through friendly communications, thoughtful negotiations, compromises, view
easements, and other traditional means.

8.08.020 Findings.

This chapter is enacted in recognition of the following findings:

A. Views and access to sunlight are important to properties inside Medinas boundaries. The
Medina Comprehensive Plan identifies the importance of access to views and sunlight, as
well as the importance of trees and extensive landscaping to the communitys distinctive and
informal neighborhood development pattern.
B. Views produce a variety of significant and tangible benefits such as:
1. Contributing to the economic environment by substantially enhancing real property
values; and
2. Contributing to the visual environment by providing inspiring panoramic vistas.
C. Access to plentiful sunlight enhances livability and promotes the general welfare of the
community; and
D. Trees, extensive vegetation, views and access to sunlight, and the benefits derived from
these may come into conflict when unmanaged trees and vegetation interfere with the
enjoyment of views and access to sunlight, potentially impacting property values.
E. With appropriate safeguards requiring consideration of all the factors set forth herein,
affected property owners requesting view or sunlight access improvement can be given

PCRecommendationViewandSunlight 5of12

View and Sunlight Obstruction - continued discussion Page 20 of 38

 AGENDA ITEM #1.

ATTACHMENT A

substantial relief without infringing upon the rights of the owners of properties containing
trees and vegetation.
F. It is in the interest of the public health, welfare, peace and safety to establish criteria and
procedures for resolving disputes involving obstructions of views and access to sunlight.

8.08.030 Purpose.

The purpose of this chapter is to:

A. Provide a localized process for resolving disputes where trees, vegetation, views and
sunlight may come into conflict with each other;
B. Promote the public health, welfare, peace and safety;
C. Preserve and promote the significant tangible benefits provided by views; and
D. Preserve and promote the significant tangible benefits provided by access to sunlight.
E. Balance the rights of residential property owners with foliage against the rights of residential
property owners to continue enjoying views or access to sunlight that they have enjoyed
during their property ownership.

8.08.040 Definitions.

A. General provisions.
1. Words used in the singular shall include the plural, and the plural shall include the
singular, unless the context clearly indicates the contrary.
2. Terms not defined herein shall take their meaning from definitions in the Medina
Comprehensive Plan or in the Unified Development Code (Title 20 MMC). If a specific
term is not defined or referenced, it shall take its normal and customary meaning within
the context of how it is used.
B. Definitions.
1. City means City of Medina.
2. Complainant means an owner of real property in the city of Medina who alleges that
foliage from the property of another person are causing unreasonable obstruction of their
pre-existing views or access to sunlight.
3. Director means the city manager or designee appointed by the city manager to
administer this chapter.
4. Foliage means a cluster of leaves, flowers and/ or branches from any organism of the
plant kingdom, including trees, bushes, and shrubs.
5. Hearing Examiner means the person appointed pursuant to MMC 2.78.020 with the
powers and duties prescribed in Chapter 2.78 MMC.
6. Owner, real property means a person who has legal or equitable title to real property,
or his or her agent or representative.
7. Primary living or entertaining area means an area from which a view is observed most
often by occupants relative to other portions of the residence, which may include both
interior and exterior spaces. The determination of primary living or entertaining area is to
be made on a case-by-case basis, but excludes such spaces as hallways, garages,
closets, laundry rooms, and other spaces not typically used for primary living or
entertainment.
8. Respondent means any person owning real property in the City of Medina upon whose
land is located foliage alleged by a complainant to cause an unreasonable obstruction to
a view and/or access to sunlight.
9. Restorative action means any specific requirements to resolve a view and sunlight
obstruction dispute.

PCRecommendationViewandSunlight 6of12

View and Sunlight Obstruction - continued discussion Page 21 of 38

 AGENDA ITEM #1.

ATTACHMENT A

10. Right-of-way means a public or private area that allows for the passage of people or
goods. Right-of-way includes passageways such as freeways, streets, bike paths, alleys,
and walkways. A public right-of-way is a right-of-way that is dedicated or deeded to the
public for public use and under the control of a public agency.
11. Right-of-way Trees means a tree with at least two-thirds of its trunk diameter on public
right-of-way.
12. Substantial deprivation of sunlight means the loss of a substantial portion of direct or
indirect sunlight in a primary living or entertaining area or in a significant portion of the
complainants real property.
13. Tree means a self-supporting woody perennial plant, excluding a bush or shrub.
14. View means an actual or potential vista observable from within a primary living or
entertaining area of a residence or lot which has a significant horizontal expanse and
which includes, but is not limited to a vista of Lake Washington, the opposite shore of
Lake Washington, Mercer Island, a bridge, the Olympic or Cascade Mountains, Mount
Rainier, the golf course or the skylines of Seattle or Bellevue.

8.08.050 Rights established.

A. Owners of real property shall have a right to seek to preserve and/ or restore views or
access to sunlight on their property when a view or access to sunlight:
1. Existed at any time after taking ownership of said real property; and
2. Has been unreasonably obstructed by foliage from the growth of trees or vegetation by
neighboring properties after ownership of said real property; and
3. The obstruction is experienced from a primary living or entertainment area.
B. To establish such rights under this chapter, the owner of real property must follow the
process established in this chapter.
C. Nothing in this chapter shall prevent a property owner from seeking redress from a view or
access to sunlight obstruction using other lawful available means.

8.08.060 Not eligible under this chapter.

The following are not eligible for redress under this chapter:
A. Creation of a new view or enhancing a view or access to sunlight that was not at one time
enjoyed by the owner of real property after taking ownership of said property; or
B. Obstruction of views or access to sunlight involving trees in public rights-of-way, or foliage
on city-owned property such as city parks.
Owners of real property seeking redress of obstructed views or access to sunlight by trees in a
public right-of-way shall follow the provisions in Chapter 20.52 MMC.

8.08.070 Unreasonable obstruction.

Unreasonable obstruction is the obstruction of view or sunlight, or both caused by the

uncontrolled growth of foliage, which is determined to exist applying the evaluation criteria set
forth in MMC 8.08.150 and which may be eligible for redress as provided for in this chapter.

8.08.100 Process for resolving view and access to sunlight disputes.

When a complainant raises a view or access to sunlight obstruction claim and good faith efforts
fail to resolve the dispute, the process outlined below shall be used in determining if an
unreasonable obstruction exists:

PCRecommendationViewandSunlight 7of12

View and Sunlight Obstruction - continued discussion Page 22 of 38

 AGENDA ITEM #1.

ATTACHMENT A

A. The complainant shall seek to resolve the dispute using the process of neighbor
reconciliation set forth in MMC 8.08.110;
B. If the process of neighbor reconciliation fails to resolve the dispute, an unreasonable
obstruction complaint may be filed pursuant to MMC 8.08.120 and the hearing examiner
shall decide the dispute.
C. Parties are encouraged to use the Seattle King County Alternative Dispute Resolution
Center for mediation, or may submit their dispute to binding arbitration, but these are not
required.

8.08.110 Neighbor reconciliation.

A. A complainant who believes they have cause for an unreasonable obstruction of views or
access to sunlight claim under the rights established in MMC 8.08.050, prior to seeking any
further relief afforded under this chapter, shall provide written notification of such concerns
to the respondent.
B. The notification shall propose specific restorative actions, such as tree trimming, and offer to
pay the costs associated with such actions.
C. If the complainant and respondent cannot reach a mutually agreeable solution, or if the
respondent fails to reply to the complainants notice within 45 days of delivery, the
complainant may file an unreasonable obstruction complaint pursuant to MMC 8.08.120.

8.08.120 Unreasonable obstruction complaint.

A. A complainant may file an unreasonable obstruction complaint if the process of neighbor

reconciliation fails to resolve the dispute.
B. Complaints must be in writing and submitted to the director and shall contain the following:
1. A statement of complaint including information on how the view/ access to sunlight is
unreasonably obstructed per the evaluation criteria in MMC 8.08.160;
2. An address or other information identifying the property having the cause of obstruction;
3. A request for a hearing to adjudicate the complaint;
4. Contact information for sending notice to both the complainant and the respondent;
5. Evidence showing the establishment of rights under MMC 8.08.050 such as:
a. A description of the nature and extent of the alleged obstruction with corroborating
evidence such as photographs, slides, or prints;
b. Evidence establishing the date the complainant took ownership of their real property;
c. Evidence that the view or access to sunlight was enjoyed after the complainant took
ownership of their real property; and
d. Other relevant information;
6. Evidence of the neighbor reconciliation efforts;
7. Restorative actions requested consistent with MMC 8.08.160;
8. An advanced deposit fee in the amount established by the Citys fee schedule to
reimburse the City for expenditures including administering and processing the
complaint.

8.08.130 Unreasonable obstruction complaint hearing.

A. The hearing examiner is designated as the authority to decide an unreasonable obstruction

complaint.
B. Upon acceptance of a complaint as prescribed in MMC 8.08.120, the director shall:
1. Transmit a copy of the complaint to the respondent; and
2. Notify the respondent that they are required to reply to the director within 30 days.

PCRecommendationViewandSunlight 8of12

View and Sunlight Obstruction - continued discussion Page 23 of 38

 AGENDA ITEM #1.

ATTACHMENT A

C. The respondents reply to a complaint shall include the following:

1. A written answer to the complaint;
2. Any reports or exhibits they wish to present in answering the complaint;
3. Any mitigating circumstances they wish to identify for consideration in resolving the
complaint.
D. The director may grant up to a 21-day extension to the respondent to reply to the complaint
if the respondent requests such an extension in writing prior to the deadline established in
MMC 8.08.130(B) and shows reasonable cause for the extension.
E. Failure to reply to a complaint shall not invalidate the proceedings.
F. Upon receipt of the respondents reply to the complaint or upon the expiration of the reply
period, the director shall transmit a copy of the complaint and the respondents reply to the
hearing examiner.
G. The director shall schedule with the hearing examiner a hearing to decide the complaint.
The director shall transmit a notice of the date, time and place of the hearing to the
complainant and the respondent at least 10 days prior to the hearing date.
H. The hearing shall be conducted in accordance with the rules for hearings set forth in MMC
2.78.060. The hearing examiner may establish proceedings and issue orders in such a
manner as the hearing examiner deems appropriate to ensure a fair, timely and reasoned
decision.
I. The City shall at a minimum post notice of the hearing date, time and place on its website.
The hearing shall be open to the public, but it is at the hearing examiners discretion to allow
public testimony at the hearing.

8.08.140 Hearing examiners determination.

A. The hearing examiner shall use the evaluation criteria in MMC 8.08.150 to:
1. Determine whether an unreasonable obstruction exists; or
2. Direct the complainant and/ or respondent to take specific actions before bringing the
matter back before the hearing examiner.
B. If the hearing examiner determines that an unreasonable obstruction exists, the hearing
examiner shall determine the least invasive procedures for remedying the obstruction using
the limitations on restorative action set forth in MMC 8.08.160.
C. The hearing examiners determination shall set forth appropriate directions for taking
restorative action including, but not limited to directions for obtaining cost estimates for
restorative work.
D. The hearing examiners determination shall be in writing and be consistent with applicable
provisions for a Type 3 decision in MMC 20.80.190.
E. The respondents failure to reply to any of the notices required under this chapter or failure
to participate in the process shall not factor into the determination of whether an
unreasonable obstruction exits or in determining restorative action.
F. A party of record aggrieved by the hearing examiners decision may submit a request for
reconsideration pursuant to MMC 2.78.090.
G. A hearing examiners determination of an unreasonable obstruction shall not become final
until all expenses of the City for processing the complaint have been paid. Failure to pay
the full amount owed within 30 days after the City sends an invoice shall void the decision
unless the director agrees to a longer period for payment.

8.08.150 Unreasonable obstruction evaluation criteria.

A. View obstruction. The following criteria are to be considered in determining the existence of
an unreasonable obstruction of views:

PCRecommendationViewandSunlight 9of12

View and Sunlight Obstruction - continued discussion Page 24 of 38

 AGENDA ITEM #1.

ATTACHMENT A

1. The extent foliage obstructs views from a primary living or entertainment area, which had
existed after the complainant took ownership of their property;
2. The quality of the view being obstructed from a primary living or entertainment area,
which had existed after the complainant took ownership of their property;
3. The extent to which the claimed obstruction was reasonably foreseeable at the time the
complainant took ownership of their property;
4. The extent to which the complainants view, which had existed after the complainant
took ownership of their property, has been diminished by factors other than growth of
foliage; and
5. The extent to which removal or pruning of foliage will infringe on the respondents
privacy.
B. Sunlight obstruction. The following criteria are to be considered in determining the existence
of an unreasonable obstruction of access to sunlight:
1. The extent the complainant suffers from substantial deprivation of access to sunlight that
had existed at some time during ownership of their property;
2. The extent foliage from the respondents property contributes significantly to the
substantial deprivation of sunlight;
3. The foliage causing the substantial deprivation of sunlight is located within 50 feet of the
complainants property;
4. The extent to which removal or pruning of foliage will infringe on the respondents
privacy.
C. Nothing in the evaluation criteria shall be construed as a party being entitled to an entirely
unobstructed view or access to sunlight.

8.08.160 Unreasonable obstruction limitations on restorative action.

If the hearing examiner determines an unreasonable obstruction exists, the following factors
shall be considered in determining what restorative action to apply:
A. The extent to which views or access to sunlight is obstructed from a primary living or
entertainment area;
B. The extent to which one or more of the unique features described in the definition of a view
are obstructed from a primary living or entertainment area;
C. The extent to which shade from foliage on the respondents property reduces sunlight and
affects foliage on the complainants property;
D. The extent to which foliage provides benefits including, but not limited to privacy, wildlife
habitat, soil stability, energy conservation, and controlling water runoff;
E. The effect restorative action can be anticipated to have on other trees and vegetation;
F. The availability of less intrusive restorative actions; and
G. The extent to which restorative action will interfere with the use and enjoyment of the
respondents property.

8.08.170 Compliance with city codes required.

All restorative action must comply with the requirements set forth in the Medina Tree Code,
Chapter 20.52 MMC. The hearing examiner may request such information from the parties as
necessary, including but not limited to an arborists evaluation, to ensure restorative action
complies with the standards for tree pruning and/or removal set forth in Chapter 20.52. MMC.

PCRecommendationViewandSunlight 10of12

View and Sunlight Obstruction - continued discussion Page 25 of 38

 AGENDA ITEM #1.

ATTACHMENT A

8.08.180 Effect of a determination of an unreasonable obstruction.

A. The effect of a hearing examiners determination of an unreasonable obstruction is a land

use decision as defined in RCW 36.70C.020. Any conditions set forth in the determination
for restorative action shall be binding on the complainant and the respondent.
B. The respondent shall comply with the hearing examiners decision within 120 days after
issuance of a notice of decision (see MMC 20.80.200), unless a different time is granted by
the hearing examiner.
C. The complainant shall make a good faith effort to work with the respondent to comply with
the terms and conditions of the hearing examiners decision.

8.08.190 Allocation of costs.

Unless mutually agreed to otherwise between the parties, all costs associated with the
processing of the complaint and any restorative action shall be paid by the complainant.

8.08.200 Enforcement.

This section applies if the hearing examiner affirms the existence of an unreasonable
obstruction as prescribed in MMC 8.08.070 and restorative action is required.
A. Petition for noncompliance.
1. A complainant may file a petition for noncompliance if the respondent fails to comply with
the terms of restorative action set forth in the hearing examiners determination of an
unreasonable obstruction.
2. A petition for noncompliance shall be in writing and include the following:
a. A statement requesting an order of noncompliance and the reasons for the request;
b. A copy of the hearing examiners decision with the required restorative action;
c. Evidence that a good faith effort was made by the complainant pursuant to MMC
8.08.180(C);
d. Evidence that the terms and conditions of the hearing examiners decision have not
been complied with; and
e. Payment of fees established under the Citys fee schedule.
B. Processing procedures.
1. The complainant shall submit a complete petition for noncompliance meeting the
requirements in MMC 8.08.200(A)(2) to the director;
2. Upon acceptance of a complete petition for noncompliance:
a. The City shall transmit the request to the hearing examiner and schedule a hearing;
b. The City shall transmit notice of the hearing date, time and place to the complainant
and respondent at least 10 days prior to the hearing date;
c. The hearing shall be conducted in accordance with the rules for hearings set forth in
MMC 2.78.060;
d. The hearing examiner may establish proceedings and issue orders in such a manner
as the hearing examiner deems appropriate to ensure a fair, timely and reasoned
decision;
e. The City shall at a minimum post notice of the hearing date, time and place on its
website.
f. The hearing shall be open to the public, but it is at the hearing examiners discretion
to allow public testimony at the hearing.
3. Following completion of the hearing, the hearing examiner must decide the petition for
noncompliance by either:
a. Granting the petition if the evidence supports the request; or

PCRecommendationViewandSunlight 11of12

View and Sunlight Obstruction - continued discussion Page 26 of 38

 AGENDA ITEM #1.

ATTACHMENT A

b. Granting the petition with conditions if the evidence supports the request and such
conditions; or
c. Denying the petition if the evidence does not support the request.
4. The hearing examiners decision must be in writing and consistent with MMC
20.80.190(G).
5. If the hearing examiner grants the petition, the City shall transmit a copy of the order for
noncompliance to the respondent and the complainant.
6. A party of record aggrieved by the hearing examiners decision may submit a request for
reconsideration pursuant to MMC 2.78.090. Submittal of a request for reconsideration
shall stay any penalties set forth in MMC 08.08.200(C) until the request for
reconsideration is decided.
C. Penalties.
1. The granting of a petition for noncompliance shall represent a determination that the
respondent has failed to comply with a hearing examiners order and shall constitute a
civil violation.
2. A civil violation under this chapter shall carry an automatic monetary fine of $1,800 plus
the hearing examiner may assess an additional fine of up to $250 per day. Monetary
fines are cumulative and the additional fine of up to $250 may be assessed each day
until the director is satisfied the respondent complies with the terms and conditions for
restorative action in the hearing examiners decision.
3. The respondent shall be responsible for paying all penalties.
4. Applicable notice of violation procedures set forth in Chapter 1.15 MMC shall be used for
issuing notices and for the administration and collection of fines, except no
administrative appeal shall be available.
5. The director is authorized to reduce the total fine by up to 50 percent, if the respondent
presents mitigating circumstances that the director determines warrant a reduction, and
the respondent:
a. Requests a reduction of the fines in writing; and
b. Complies with the hearing examiners order including all restorative actions within 30
days of the start date fines are assessed; and
c. Contacts the director to verify compliance has been completed.
D. Burden of proof.
1. The complainant has the burden of proof when filing a petition for noncompliance to
demonstrate that the respondent failed to comply with the restorative actions prescribed
by the hearing examiner.
2. The respondent has the burden of proof to demonstrate compliance with restorative
actions if the hearing examiner grants a petition for noncompliance.
E. If the hearing examiner denies the petition for noncompliance, the complainant cannot
submit another petition for noncompliance for at least six months.

8.08.220 Limitation on application.

This chapter shall not be construed to affect obligations imposed by easement, covenants or
agreements.

8.08.230 No duty to abate.

No provision or term used in this chapter shall impose any duty upon the city or any of its
officers or employees to abate an unreasonable obstruction as set forth in chapter 8.08 MMC.

PCRecommendationViewandSunlight 12of12

View and Sunlight Obstruction - continued discussion Page 27 of 38

 AGENDA ITEM #1.

ATTACHMENT A

STAFF COMMENT: Below is an alternative for consideration regarding the permitting

requirements for a tree in the right-of-way. It allows removal of a tree based on views to be
considered under a Type 2 Administrative ROW Tree Activity permit using increased noticing. If
an objection to removing the tree is received during the comment period, the application is then
upgraded to a Type 3 Non-administrative ROW Tree Activity permit, which requires a public
hearing and is decided by the hearing examiner. This allows for a less expensive permit
process if the request is noncontroversial.

Alternative Section 4. Amend MMC 20.52.400. Section 20.52.400 of the Medina Municipal
Code is recommended to be amended to read as follows:

D. Removal of a city tree located within an open or closed city right-of-way may be allowed for
the following:
1. Hazard trees designated pursuant to MMC 20.52.200;
2. Nuisance trees designated pursuant to MMC 20.52.210;
3. Trees not suitable under utility lines, or in the city right-of-way, as prescribed in the City
of Medina List of Suitable Tree Species;
4. Any tree having less than a 10-inch diameter breast height size; and any trees not
included on the City of Medina Suitable Tree Species List for the right-of-way having
less than a 36-inch diameter breast height size;
5. Trees where pruning and trimming for utilities caused significant defects to the primary
stem of the tree resulting in significant abnormal growth;
6. Trees where removal is necessary to allow vehicle access to a property;
7. ((Trees where removal is necessary to restore a view significantly obstructed by the tree
provided of the following criteria are satisfied:
a. The owner of the adjoining property to the subject tree accept allowance to have the
tree removed));
b. The person claiming the view obstruction establishes the tree causes an
unreasonable view obstruction using the provisions established in MMC 18.16.040
through 18.16.080; and
c. The approval of a nonadministrative right-of-way activity permit is obtained pursuant
to MMC 20.72.090.))
Trees where removal is necessary to preserve or restore a view unreasonably
obstructed by the tree provided the following criteria are satisfied:
a. The owner of the adjoining property to the subject tree agrees to the trees removal
and the director finds the removal of the tree is consistent with the comprehensive
plan and tree management goals; and
b. The tree is not a legacy tree pursuant to MMC 20.52.120; and
c. Approval of an administrative right-of-way tree activity permit must be obtained
pursuant to MMC 20.71.050. During consideration of the permit, the director must
find the applicant had a right to a view pursuant to MMC 8.08.050.
d. The mailed notice set forth in MMC 20.80.110(C) and MMC 20.80.140(B)(2) shall be
sent to the addresses of all properties located within 600 feet.
e. During the public comment period for the notice of application, if the City receives a
written objection to the removal of the tree, approval of a non-administrative right-of-
way tree activity permit must be obtained pursuant to the requirements in MMC
20.72.090. During consideration of the permit, the hearing examiner must find an
unreasonable view obstruction as defined in MMC 8.08.070 exists.

PCRecommendationViewandSunlight 13of12

View and Sunlight Obstruction - continued discussion Page 28 of 38