Things that go Bark! in the night

There is little more annoying than being wakened up in the middle of the night, night after night, by the barking of dogs. Whether yapping from a distant hillside or next door neighbor woofs. Nocturnal baying, whining, bellowing and howling are not only unwelcome, they may well be illegal as well.

What is it that possesses otherwise normal human beings to leave their pet Fido outside in the night, where he can be distracted by all sorts of critters that prowl after dark? Raccoons, skunks, deer, teenagers stealthily returning home after curfew, and marauding cats, all can turn man’s best friend into his worst nightmare.

Here are some tips for those of you whose sleep has unraveled due to the insensitivity of neighbors:

First track the offenders down, then:

1. Talk to the neighbor. sometimes they just do not realize their beloved pooches go from darling Dr. Jekyll when they are around to menacing Mr. Hyde in the dark of the night. Are other neighbors affected? Try a petition or maybe an intervention. Be polite, but let the offending dog owner know there are real problems with this behavior.

2. Record the yipping. You’d be surprised how effective this can be when played back over the offender’s answering machine, to convince them, yes, it is their dog making all that racket.

3. Know your local ordinances. Most cities and towns have noise ordinances prohibiting the dog barking that continues for an unreasonable time, or late into the night, usually after 10 PM or so. Present this information in your initial approach.

4. Do call the police. If the friendly methods don’t work, the police will respond to a noise complaint. Sometimes a warning from the boys in blue is all it takes for a recalcitrant dog owner to quiet the pooches down.

5. Have a lawyer write a letter. Sometimes this is the only thing that shows you are serious. There are stiff penalties for this kind of nuisance, including having the dogs removed from their owners’ possession. A lawyer can explain this in terms that may get their attention, if they have blown you and the local constabulary off.

6. Take the scoundrels to court. Yes, Virginia, there is a doggie court. It’s the court of last resort in a neighborhood dispute. Bow Wow! True story. My neighbors and I had been woken up repeatedly by the barking and howling of multiple dogs living up the hill from us. We had left notes, we had left phone messages; the offending pet owner vowed to keep the hounds quiet.

But over and over, he and his family would blithely go off for who knows what entertainment, leaving the canine family outside until the wee hours. Finally, a neighbor down the street had it and took the man to court. The judge said “Fred, you got no alibi; cuz you were somewhere else, your dogs will have to …” no not die, but be quieted. Electric fence, bark collars, or just put the damn things in the house, or take them in the car with you.

Backsliding is often cured with a gentle reminder of what else the judge said, "we don’t want to see you here again, or we will take the dogs away." Tough justice? Maybe, but when you can’t sleep, and you’ve tried all the other neighborly approaches, you may need to fight barking with biting.

Greenhouse Gases and CEQA

There's a swirling chatter all over the web and in the newsletters of land use law offices. Since 2006, with the passage of AB 32, the California Global Warming Solutions Act of 2006, the effect of this landmark legislation on our State's environmental laws, particularly CEQA (the California Environmental Quality Act) has been the subject of much speculation and, often, frustration.

AB 32 requires the California Air Resources Board to:

· Establish a statewide Greenhouse gas (GHG) emissions cap for 2020, based on 1990 emissions by January 1, 2008.
· Adopt mandatory reporting rules for significant sources of greenhouse gases by
January 1, 2008.
· Adopt a plan by January 1, 2009 indicating how emission reductions will be achieved from
significant GHG sources using regulations, market mechanisms and other actions.
· Adopt regulations by January 1, 2011 to achieve the maximum technologically feasible and
cost-effective reductions in GHGs, including provisions for using both market mechanisms
and alternative compliance mechanisms.
· Convene an Environmental Justice Advisory Committee and an Economic and Technology
Advancement Advisory Committee to advise ARB.
· Ensure public notice and opportunity for comment for all ARB actions.
· Prior to imposing any mandates or authorizing market mechanisms, requires ARB to
evaluate several factors, including but not limited to: impacts on California’s economy, the
environment, and public health; equity between regulated entities; electricity reliability,
conformance with other environmental laws, and to ensure that the rules do not
disproportionately impact low-income communities.
· Adopt a list of discrete, early action measures by July 1, 2007 that can be implemented
before January 1, 2010

Since many of these dates have passed, let's see how much has actually been accomplished.

One of the first things was the passsage of yet more legislation SB 97, which requires the Governor’s Office of Planning and Research (OPR) to create CEQA guidelines to mitigate GHG emissions, including, but not limited to, effects associated with transportation or energy consumption. OPR must prepare these guidelines and transmit them to the Resources Agency by July 1, 2009.

This was supposed to help the confusion over AB 32 and implement some of its requirements. Many towns and Cities and Counties have been scrambling to met the deadlines, and to interpret what that means in terms of CEQA analysis for various projects, including housing, commercial development and transportation projects.

Now we have SB 375 which streamlines CEQA analyses for certain projects like transit oriented development to discourage sprawl and hence global warming impacts. It imposes a regional approach on planning which many enviros have wanted for a long time.

I agree, it's overdue. My questions have to do with issues facing small towns, when large projects are proposed, in fact pushed by the powers that be, read ABAG housing requirements, that threaten the character of he town, and maybe even will have an opposite effect of that desired: to provide more affordable housing in town centers, near transit.

The problem is developers want and demand more housing and the bonuses that go with it, in order to provide the necessary affordable housing. (What a crazy concept; shouldn't ALL housing be affordable?). To me, this is the crux of what's wrong with the way we use land in this country; it sells to the highest bidder (and how well is that working for those of you who spent too much on your own homes?) instead of apportioning the land as needed to serve the community.

The "highest and best" use of land means getting the most $$ out of it, not the most efficient use of resources, not the best way to serve those in need of quality, inexpensive housing.

But I digress with opinion, not information. To read more about these bills and more, go to:

http://eartotheground.typepad.com/weblog/global_warming/ and

http://www.publiclawnews.com/public_law_news/2008/10/sb-375---landma.html

and you will see that the professionals are scratching their heads, just like me.

More email Questions

A listener to the Len Tillem show writes about her neighbor's encroaching Redwood tree:

My neighbor has a 300 ft. Redwood tree planted in the corner of her yard next to the fence which adjoints my fence and the other two neighbors.The trunk of the tree is approximatly 6 feet & has pushed into my yard forcing me to adjust my fence to make room for the bottom of the trunk. I only have a partial fence in that corner area now.

The tree has sprouted a new tree from the trunk which is going to cause further problems as it grows. I've requeste that she have a tree firm come out & use a chain saw and trim all the sprouts around the tree so our fence will not have further problems. She has ignored all my written requests.

Should I send a registered letter to her on the problem and go to court if she does nothing? What are my alternatives! Also will the tree cause problems when we want to sell our house? Thanking you in advance for your reply on this matter.

Signed,

Rammed by a Redwood

Land Use News Responds:

Thank you for writing and for listening to the Len Tillem Show. Your problem is not unusual. Your neighbor's tree has outgrown its area, and is encroaching on yours. You have the right to trim the tree to the property line so long as you do not damage the tree's health. You may trim off the sprouts that are growing into your yard.

As for the damage to the fence, yes, certainly do send her a letter, as she will be liable. She may want to contact her insurance company. If your letter doesn't work, make sure you document the damage and see about having an attorney write a letter. You might also want to consult an arborist about the condition of the tree. Depending on where it is, its health and soil conditions, it could pose even greater problems as time goes by.

You also do not say where you are. In some areas a redwood is a protected tree, and in others it is considered undesirable.

Best of luck.

After the Len Tillem Show (KGO 810 AM) on Sunday night, where I talked about neighbor law, barking dogs, trees and even peeping Toms, I started getting emails from interested listeners. I thought I would post some of them and the responses I gave. Please note that my responding to these writers does not constitute giving legal advice and does not establish an attorney/client relationship.

Only letters whose writers have given permission for me to publish them will be posted.

Read on:

Land use News,

I was the probably the last caller for your show on Sunday and after waiting to get on and ask my question time ran out. I have a simple problem. My neighbor has a row of trees on her side of the property line (liquid amber trees). The roots from these trees have pushed up my nice poured concrete pathway on the side of my house . The roots have also pushed up my driveway concrete, cracking it in many places. Is she libel for the damage created? If I take her to small claims court, do I have a foot to stand on?

I am also not sure what to do for a solution to the problem. If I remove the concrete and replace it the roots will create the same situation in the future. Any ideas?

Thanks,

Unhappy neighbor

Dear Unhappy neighbor,

Thank you for listening to the Len Tillem Show. Sorry we were not able to get to your call. If the roots of these trees are truly tearing up your driveway and pathway, it is most likely the neighbor will be liable for it. You need to have the roots examined by a consulting arborist who can tell you whether the roots can be safely cut on your side without compromising the tree's health. If so you can cut them, and put in a root barrier to keep the problem from happening again.

The general rule is you may trim a neighbor's tree to the property line so long as you do not damage the tree's health.

If this is impossible, you may still bring an action for nuisance and damages. In small claims, the limit is only $7500, but that maybe enough to repair and/or move your driveway, if necessary. You would need to consult some kind of contractor to see if there is a stronger material to use on the new driveway, to prevent future damages.

Sometimes an arborist's report and letter from an attorney will do the trick to get the neighbor to remedy the problem. Have you discussed wit with the neighbor yet? I would advise doing that, in the hopes you can resolve it amicably.

Best of luck.

Land Use News

Green Legal Solutions

This month, my law office branched out into a new, expanded area of practice, which we are calling Green Legal Solutions. We will still advise homeowners on tree, property and boundary disputes. And help community groups struggle with protecting their environment. But now we will also work with small businesses and good green builders who want to be environmentally friendly, get certified by local or State agencies and be a part of the solution.

I am pleased that over the years this office has helped stop, or get modified, inappropriate, too large, out of scale and just plain wrong development in places like Novato, San Rafael, West Marin, and many other northern California locations.

My law office has helped homeowners fight toxic chemicals in their home, solve nasty disputes with neighbors and their homeowner associations and and preserve neighborhood amenities. We have helped protect both trees and views; provided guidance on fences and easements, drawn up agreements to allow neighbors to live in peace. We look forward to working with more such clients in the future.

Don't forget to tune in to the Len Tillem Show on Sunday, September 28, from 6-7 PM, KGO, 810 on your AM dial. We will discuss these issues and more. If you haven't heard Len before, he is a kick, very savvy, and a great guy to work with on the air.

Listen to Len Tillem Sept. 28

Finally, we are back on the air. Sunday Sept. 28, from 6-7 PM, KGO radio, AM 810. Len Tillem has asked me back and after a couple of reschedules, we have nailed down the date.

Listen up and call with your tree, easement, boundary or other property issue.

Look forward to talking to you soon.

Jail Time for Trimming Trees in State Park

This story from the Sonoma Press Democrat reminds of a case I had once where a homeowner trimmed some trees (well he felled them actually) on State Park lands adjacent to his property, as the neighbor had told him it was ok.

He was mortified to find out it was not of and that he may face jail time and a very stiff fine and restititution. My client settled out of court without a trial and no criminal record. It's a shame this guy's lawyer didn't work out a deal to prevent the outcome. Sending a hedge fund manager in front of a jury in these economic times not such a good ploy.

Of course, I do not know all the facts and so cannot really second guess that decision.

Read on:

Jail time for trimming trees in state park
Mendocino County jury convicts SF hedge fund manager of vandalism
By MIKE GENIELLATHE PRESS DEMOCRAT
Published: Wednesday, August 27, 2008 at 4:30 a.m. Last Modified: Wednesday, August 27, 2008 at 3:42 a.m.
UKIAH -- A wealthy San Francisco hedge fund manager faces five days in Mendocino County Jail after being convicted of illegally trimming trees along a popular trail in Van Damme State Park, which adjoins his luxury vacation retreat.
Derek Webb, 49, a benefactor to North Bay land trusts and environmental groups, is scheduled to begin serving the jail time on Oct. 7.
Webb's jail sentence was ordered after a Ukiah jury last Friday convicted the asset manager of a misdemeanor vandalism charge. Superior Court Judge Richard Henderson also ordered Webb to perform 50 hours of community service.
County prosecutors on Tuesday hailed Webb's conviction, saying that it sends a message that a "person's deeds as a public benefactor does not exempt him from the rule of law."
District Attorney Meredith Lintott said state parks representatives pushed for prosecution, and "We thank them for their role in protecting the public's land."
But Webb's attorney, Rod Jones of Mendocino, said Tuesday that the prosecution pronouncements left him "speechless," given that Webb had been convicted of a misdemeanor, not the felony sought by prosecutors. "Were they in the same courtroom?" asked Jones.
He said the jail sentence seems to be a stretch.
"Jurors understood what was at issue, and they didn't see it as a felony crime deserving jail time," said Jones.
Webb couldn't be reached for comment Tuesday, but Jones said his client was deeply disappointed at the outcome, especially the jail sentence.
Webb's conviction stems from an incident in October, 2007 when a state parks official saw him using a chain saw to trim back tree branches along a heavily used trail on the south side of Van Damme park. Webb owns adjoining property, including a landmark coastal farm called Spring Ranch.
Prosecutors said coast parks Supt. Marilyn Murphy was off duty at the time and walking her dogs along the trail when she came upon Webb.
Murphy testified that Webb insisted he was only trying to help the state maintain the trail and that he thought it unnecessary to have to seek permission from the "bureaucracy."
Prosecutors told jurors that Webb seriously harmed the stand of tan oak, coast and Monterey pine trees by trimming them improperly.
Jones said Webb is so dismayed by the local prosecution that he may rethink his involvement in community events.
Since 2006, Webb has hosted dinners and donated stays at his retreat, which features a restored six-bedroom Victorian house dating to the 1860s. Rental fees for a two-night stay ranges up to $1,563, according to the Spring Ranch Web site.
You can reach Staff Writer Mike Geniella at 462-6470 or mgeniella@pressdemocrat.com.