Tuesday, December 03, 2013

Tips for Homeowners Seeking Views

If you live in one of the communities with a tree and view ordinance or your ccr's define protected views, here are a few simple tips to insure you retain the views you had when you bought your property without getting into a lengthy, costly and acrimonious legal spat with your nighbor.

1. Document existing views. Take photographs when you move in of the views that you want to preserve, noting the location and height of trees that may become a problem in the future.

2. Meet your new neighbors and discuss with them your desire to maintain good relationships and good views, so that they can understand your interest in seeing their trees do not become too tall or bushy as they grow.

3. You may want to offer to share in tree maintenance costs from the beginning; after all, it is the investment in your property you are insuring, as well as a future cordial relationship with the neighbors.

4. Continue your photographic documentation of the trees as they grow (if they do), and discuss any potential problems as they arise.  Are the trees starting to encroach the on the view? If you've had success with 1-3, your neighbor is likely to be willing to trim the trees before they become a real issue between you.

5. Know the rules for your community or development, including the procedure for filing a claim, going to mediation or other dispute resolution methods recommended.

6. If you need to invoke the process, you will be armed with knowledge and with a paper trail of your efforts to preserve the view amicably.

7. And don't forget to try mediation first, before you go to court (most tree/view ordinances require you ask your neighbor to mediate before you may bring a lawsuit). If you do get to court, the judge is likely to send you to mediation anyway, so why not try first, agreeing to use a skilled mediator and even a mutually agreed upon neutral expert to advise you and the neighbor of how to remediate the problems to the satisfaction of both parties?


Tuesday, November 12, 2013

When Trees go Rogue

Are trees like unruly teenagers, disobedient and rebellious? Or are they just following their instincts and their natural life cycle, when things go wrong? It could be a little bit of both and (as with the teenagers) most often the "parents" or tree owners have more than a little to do with their disruptive behavior.

People will plant the wrong trees in the wrong places. They don't mean to, they just didn't go to the right parenting classes. Monterey pines and many other species just do not belong in small back yards in Marin County.  They are often shallow rooted, drop debris, including large branches and are subject to pests and diseases that can ravage them and their neighbor trees. Eucalypts are prone to whole branch failure. You do not want to be under one of them when the wind is blowing.

We have handled several such cases, two most recently, where diseased and in one case, practically dead as a doornail, trees leaned precariously over the homes of nearby neighbors.

Neighbors feared going into their own yards, and were advised by experienced tree risk assessors that the tree could easily pierce the roof. Imagine cowering in corners of your own home, having had to abandon living, dining or sleeping quarters!

Neighborly pleas, arborists' reports and even letters from attorneys fell on deaf ears. In both cases, emergency court orders were the only remedy.  Luckily the orders were in place before the trees could do their damage.
Don't get me wrong; we try to get the neighbors to try to to resolve these issues between themselves first. We even offer mediation with an expert who can provide sound scientific information on the health of the trees.  Can they be saved? Sometimes. Can sneaky roots that have invaded pipes and sewer lines be turned back? Often. And here's the interesting thing: except for those cases where swift action by a stern judge is called for to avert an impending tragedy, most court cases involving trees, neighbors and property end up being sent to mediation, the courts having more pressing matters to attend to, such as violent crime or theft of valuables.

So why not mediate your tree issues first, before they become costly court cases? Save time, money and maybe even your relationship with the neighbors. Often taking this route makes everyone feel more kindly toward one another, and neighbors have been known to pitch in to help pay for trimming or removal of the offending tree, maybe even replacing it with a more "friendly" species.

Monday, November 11, 2013

Trees and Views in Tiburon California

Some towns are more protective of their residents' views and access to natural light than others. Do you have a Bay view? Can you see the magical City of San Francisco out your window? Does the sun bathe your garden in a rich glow to help keep the flowers bright and healthy and provide you with a sunny disposition?

Or are some trees down hill starting to encroach on the vista and block out the rays? If you live in the Town of Tiburon California (and many others, but we're focusing on one today), there are steps you can take to restore what you probably paid a premium price for when you first bought in a bucolic location.
Chapter 15 of the Municipal ordinance is entitled: 

Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES 

To give you an example of how expansive the protected views can be in a town with such an ordinance, here is an excerpt from the code (under section 15-2 Definitions):



"View" means a scene from the primary living area of a residence or the active use areas of a nonresidential building. The term "view" includes both upslope and downslope scenes, but is generally medium or long range in nature, as opposed to short range. Views include but are not limited to skylines, bridges, landmarks, distant cities, distinctive geologic features, hillside terrains, wooded canyons, ridges and bodies of water.

Some additional examples are: 

(1) San Francisco Bay (including San Pablo Bay, Richardson Bay, and islands therein);

(2) The San Francisco-Oakland Bay Bridge;

(3) The Golden Gate Bridge;

(4) The Richmond-San Rafael Bridge;

(5) Mount Tamalpais;

(6) The Tiburon Peninsula or surrounding communities (including the city of San Francisco).

Protecting your view and access to light does not allow you to unfettered tree removal. There are suggestions such as trimming, windowing or selective thinking to restore the view while providing the neighbor with shelter and privacy. And you are only entitled to restore the view and sunlight access that existed when you moved into the property.

And there is a strict procedure to be followed before any action is actually taken. For instance, you must first try to work things out with the neighbor amicably. If this does not work, you next offer to go to mediation with the neighbor. This is, in the opinion of this writer, a prudent move, one that can save the homeowners time, money and a lot of additional aggravation.  

If mediation fails, or your neighbor does not agree, you may prepare a tree claim, outlining your grievances and next offer the neighbor the opportunity to go to binding arbitration. Details on preparing your claim are outlined in the ordinance. Before undertaking any of this, read the ordinance carefully.

If all else fails, you may bring suit against your neighbor. While this may become your only option, and you may well prevail, this is sure to be costly and lead to ill will on all sides. Think about it carefully.

One note: neither Tiburon nor any other Town or City that I'm aware of provides names of mediators experienced in tree law and view disputes. If they did so, mightn't it be more likely that homeowners would choose that route to resolve their differences?


Wednesday, October 30, 2013

Trees in Your Town - Know the Law

Did you know that many Cities, Towns and Counties have tree ordinances? Some have view and sunlight ordinances too. All the rules are particular to the location, but they most often call for a permit to cut down trees of a certain size, type or number. If you want to cut down one of the "desirable" trees in your town (say a redwood in Mill Valley or an oak in many places), you usually will need an arborist's report, giving your reasons, such as disease or decay. Use this handy site for finding your town's ordinance. 

Sometimes, there will be hearings and your neighbors may speak out. When, as in the last post on this blog, someone wants to cut a heritage oak for construction, where those trees are protected, that might not be a good enough reason. Especially if the neighbors cry foul.

On the other hand, if you have an "undesirable" tree, such as Eucalyptus just about anywhere, acacia or fast growing pines or cypress (note, if you live on the Monterey Peninsula, proceed with caution if you want to cut a native Monterey cypress), your neighbors may cheer. They may even press the Town fathers to make you take down these trees if there is a threat of their falling on their property.
I recently had a case where an almost entirely dead tree of the "undesirable" type loomed over my client's house, making her fear to be in her own backyard. A certified tree risk assessor deemed it a hazard, but it took a judge, and a stern warning about contempt of court, to get the tree down.

This is a costly way to proceed.  If your neighbor's tree is a threat to your well-being, make sure the threat is real, talk to your neighbor about it, know what the law says in your Town and consider mediation before bringing in the legal guns.

Thursday, October 10, 2013

Oak Saved in San Anselmo!

So the tree was saved in San Anselmo. For now. Read it all here: http://www.marinij.com/marinnews/ci_24276836/heritage-oak-san-anselmo-dodges-ax?IADID=Search-www.marinij.com-www.marinij.com


Heritage oak in San Anselmo dodges the ax

Posted:   10/09/2013 05:13:36 PM PDT



Click photo to enlarge
Linda Jensen stands on her front porch on Wednesday, Sept. 25, 2013

A group of San Anselmo residents succeeded Tuesday night in its bid to save a heritage, white valley oak tree from being felled.

"Truly, it is a miracle," said Linda Jensen, who led the fight to save the tree.

Due to the labyrinthine process by which the matter was handled, the tree was saved by just two votes of the Town Council, and despite the fact the town could face a lawsuit as a result of the decision.
"The whole thing was a little unclear to me; it was very complicated," said Michiko Conklin, owner of the property where the oak is located at 134 Madrone Ave.

Public Works Director Sean Condry initially granted Conklin permission to remove the tree. Conklin says she must cut down the oak because its roots are damaging the foundation of her house. But Jensen, who fears the removal of Conklin's tree could lead to the death of several white oaks on her adjacent property, paid $500 to appeal the decision to the Town Council.

On Sept. 24, the council voted 3-1 to grant Jensen's appeal without prejudice, which meant that Conklin would be granted a second opportunity to change the council's mind. Councilman Jeff Kroot, who is an architect, recused himself from that vote because he has been hired by Conklin to add a bedroom to the house.

On Tuesday night, the council deadlocked 2-2, with Kroot once again recusing himself, over whether to reverse its decision on the appeal. Councilmen Tom McInerney and Ford Greene voted to uphold the appeal while Councilwomen Liz Dahlgren and Kay Coleman voted to reverse the appeal. Since a majority vote is required to reverse a council decision, the appeal was upheld.

McInerney and Greene stood their ground despite that Conklin's lawyer, Neil Sorensen, made veiled threats that Conklin might sue the town over the matter.

In a letter Sorensen sent to the council prior to Tuesday's meeting, he wrote, "Since the tree is clearly causing damage to Ms. Conklin's house, the town may be subject to significant liability if it declines the tree removal permit."

Sorensen made similar comments during Tuesday night's meeting.

"His comments were, in my view, counterproductive," McInerney said Wednesday. "I felt that the homeowner had not met her burden of proof to justify cutting down the tree, at least consistent with our ordinance."

Under San Anselmo's town code, which provides special protection for "heritage" trees, Conklin had to demonstrate that cutting down the tree would be a necessity for the economic enjoyment of her home.

"I just wasn't convinced this work was necessary," McInerney said. He added that the town's attorney advised that the council had sufficient grounds to make that ruling.

At Tuesday's meeting, Conklin provided new reports from an arborist, Ed Gurka, and an engineer, Peter Nissen, who stated that the tree's roots are undermining her house's foundation. The arborist and engineer were recommended to Conklin by town staff and reaffirmed similar evaluations provided by an arborist and engineer that Conklin had previously hired.

Public Works Director Condry told the council Tuesday that the foundation of Conklin's house can be designed to bridge the roots at an estimated cost of $10,000 to $25,000; it is estimated it will cost $11,000 to remove the tree. Experts differ over how fast the tree's roots will grow and how long that solution would last.

Jensen said people who want to save the tree have offered to work with Conklin in an attempt to reduce the cost of the work. Conklin's plans to add a bedroom to the house could be jeopardized by the tree's preservation, since she would need space for additional parking for approval of the addition. But Conklin says that has nothing to do with her bid to remove the oak.

She said Wednesday, "I do not know what we're going to do at this point."

Contact Richard Halstead via e-mail at rhalstead@marinij.com

Thursday, September 26, 2013

Saving San Anselmo Heritage Tree

Read this article in the Marin IJ about certified tree hazard assessor, Ray Moritz, my hubby, saving a heritage oak tree a neighbor wanted to cut down. At least for now.  Hearing was last night.

http://www.marinij.com/marinnews/ci_24176704/san-anselmo-council-grants-reprieve-heritage-oak-tree


San Anselmo council grants reprieve for heritage oak tree

Posted:   09/25/2013 05:11:22 PM PDT

Linda Jensen stands on her front porch on Wednesday, Sept. 25, 2013, in San Anselmo, Calif. She wants to prevent removal of one of a group of large oak trees behind her which the home owner next door wants to cut down. (IJ photo/Frankie Frost) Frankie Frost
Click photo to enlarge
Linda Jensen stands on her back deck on Wednesday, Sept. 25, 2013, in San Anselmo, Calif.  .

    A heritage white valley oak tree in San Anselmo received a stay of execution Tuesday night.
    The San Anselmo Town Council delayed a decision on whether to allow Michiko Conklin, the homeowner at 134 Madrone Ave., to cut down the tree on her property. Conklin says the roots of the 300-year-old oak are undermining the foundation of her house.

    Public Works Director Sean Condry granted Conklin permission to fell the tree, but Conklin's neighbor, Linda Jensen, appealed the decision to the Town Council. Jensen, who went door to door passing out flyers to alert the neighborhood about the meeting, said more than a dozen people spoke Tuesday night in favor of preserving the oak.

    "There was one 7-year-old girl whowas awesome," Jensen said.

    Conklin said she was surprised that the council didn't reject Jensen's appeal "because my situation had met the letter of the law."

    "I guess they feel they need more information," Conklin said.

    Conklin has also submitted plans to add a bedroom on the side of the house where the oak is now located, but she said that has nothing to do with her decision to remove the tree. Councilman Jeff Kroot recused himself from the public hearing because he was hired by Conklin to serve as the architect for the project, which is currently on hold.

    Ray Moritz, a certified tree risk assessor engaged by Jensen, has challenged the conclusions of Conklin's structural engineer, Karl Beckmann and her arborist, Louie Brunn of Marin County Arborists.

    Conklin said on Tuesday night the council asked her "to get another arborist and engineer to confirm what information we already have."

    Town Manager Debra Stutsman said the council wants more information about the viability and expense of bridging the foundation over the tree roots, what impact there would be to other oaks in the area if the front portion of the yard is paved over as part of the proposed building project and how immediate a threat the roots pose. No date has been set for the council to revisit the issue.
    Jensen fears that if Conklin cuts down her tree that it will damage four white valley oaks on her property, since the roots are intermingled.

    "I don't want them to die," Jensen said.

    Conklin said, "I don't really know what I'm going to do at this point. I don't think I've had enough time to digest the whole situation."

    Contact Richard Halstead via e-mail at rhalstead@marinij.com

    Friday, September 06, 2013

    Questions we'd love to see Number 3

    This is a real question, asked by a reader of a site for lawyers, with my answer.

    Made my day:

    If an actual UFO/SpaceShip lands in my back yard can i charge money from visitors or will my land be government property ?





    HI,

    I am sorry about the hypothetical aspect of this question, its just a debate between me and my friends on a summer hot day :).

    So , if an actual UFO/SpaceShip lands in my back yard can i charge money from visitors or will my land be government property ?

    Please answer with all seriousness . (witty jokes are more than welcomed)
    Thank you :)

    My answer:

    You should be so lucky! If you are not whisked away for scientific experiments by the aliens, you will surely be quarantined as another Area 51 (52?) Hold out for a good contract. There may be a slight issue with radiation contamination, for which you will be fined by the EPA and any number of other governmental acronyms.

    Monday, August 12, 2013

    Homeowners can save time, money mediating tree, neighbor disputes

    The problem:

    You’ve noticed something has happened over the last few years.  Gradually, your neighbor’s trees have grown into the view you’ve enjoyed for the last decade. One day you realize you no longer have even the narrowest slice of the bay view you loved to watch as the sun set slowly and the sky reddened into beauty.

    Is there anything you can do about this? If you live in one of Marin’s cities or towns with a tree and view ordinance (Belvedere, Tiburon, Sausalito, Corte Madera) the answer is yes. In these towns, a homeowner is entitled to restore the view he had when he came into possession of the property, if such restoration is reasonable.  In most cases you are no entitled to an unhindered view, but to a reasonable view.  The rights of the tree owners and the health of the trees are also taken into consideration when deciding these issues.

    These ordinances also provide a method for homeowners to address disputes involving trees, views and, in some cases, sunlight. One such ordinance (in Sausalito) even provides a formal body that convenes to hear and advise on such disputes.

    What to do about it:

     Here are the common steps tree and view ordinances prescribe:

     1.    Talk to your neighbor about the problem. If you believe and can document that your view of a scenic vista, bay, hills, even other trees, in the form of wooded landscape, has been impeded unreasonably by the growth of your neighbor’s trees, all the ordnances advise talking to the neighbor first. Try to work out a compromise. The neighbor may not have been aware of the growth of his tress, and if you agree to pay for the trimming, may welcome your offer.  This friendly neighbor scenario all too uncommon. Often other issues have come between the neighbors. The tree owning neighbor is defensive about his property rights. The neighbor with the lost view become indignant and talk is not an option.

    2.    Mediation. All ordinances require that you next offer to mediate the dispute with a neutral party, one who can listen to both sides without judgment. The hope is the two sides can come to a reconciliation through a facilitator. It is at this juncture that things usually break down.  The cities and towns do not keep lists of skilled mediators, so neighbors are left to their own devices. In most cases, they simply choose to file suit.

    3.    Tree Committee hearing or arbitration. Arbitration is another option, but if neighbors turn down mediation, binding arbitration is unlikely.  Sausalito is the only town with the Tree Committee. An aggrieved neighbor has the right to submit the grievance to the Tree Committee which will hold its own hearing. The neighbor complained against has the right to be present and to bring their own evidence or information to help the Committee come to a recommendation. 

    If you choose not to attend, beware, since the recommendation of the Tree Committee, creates a “rebuttable presumption” in favor of the recommendation should the case land in a court of law.  That means if you are sued and your neighbor has a finding by a tree committee that your trees be trimmed, the burden of proof is essentially on you to prove they do not unreasonably block the neighbor’s view or that the neighbor never had a view since they owned the property.

    Can things be improved:

    Having been involved in many of these cases, I believe there may be ways to avoid a costly lawsuit and make homeowner feel better about finding an actual resolution to a vexing tree and view issue.

    First, Cities and towns could keep lists of experienced mediators in tree and view disputes. This way, the homeowners could find names of those who have handled these cases before and have reached satisfactory results. When I called some municipalities to ask if they kept such a list, all I talked to said, no, they told people to use Google or the phone book.

    Second, mediators could work with experts who would remain neutral and offer both sides the benefit of their expertise. This way, more homeowners would be likely to take advantage of the offer to mediate at the outset and not wait for a judge to send them to a mediator, once positions are hardened, lawyers have racked up expenses and experts are writing dueling reports.
    This approach not only saves time and money for both homeowners, it has the potential of preserving the relationship between neighbors. And unless you plan to move anytime soon, keeping an amicable relationship with neighbors is all to the good. 

    Friday, August 09, 2013

    Nothing Easy about my Easement. Questions we'd like to see No. 2

    There is an easement along my property for the back neighbor to get to his house. He doesn't own this property; and he now wants to drive his car down it.  He used to take the bus, and walk, so my hedges have grown large and will not allow the car to pass. 

    Now he's all mad at me, and threatening to sue.  I say, no way Jose. The easement is for you to walk down only. What a lazy sob he has become over the years. Now, he think his new wife can drive her car down the eaement too. 

    Uneasy about Easement


    Dear Uneasy,

    You should be. It appears your easement is for ingress and egress, and actually is wide enough for a car to pass easily. (look at the map you sent me). You cannot block the normal access, which listen up, in the twenty-first century (and the twentieth for that matter), is usually by car, especially to a remote back lot like your neighbor has.

    That he chose to bus and walk before is irrelevant. He's not as young as he used to be (so what if he snagged a young honey, maybe you're just jealous). Give the guy (and his new wife) a break, and cut back your overgrown bushes (Is that poison ivy, by the way? Sure looks like it from the pictures you sent), or a court of law will undoubtedly make you do it.

    Thursday, August 01, 2013

    Questions we would like to see number 1

    Dear Land Use News:

    I moved into my home in posh Belvedere California in 2005. At that time, I had a very clear view from my conservatory of my neighbor's bedroom window, in front of which she was in the habit of performing her daily Pilates routine.  As you can imagine, I considered this to be a visual delight.

    Much to my dismay, her privet hedge has grown up so as to block my view. I know this is against the rules of the Belvedere view ordinance, which protects views established at the time the property was purchased from unwanted growth of vegetation. This is certainly a good case for a lawsuit, don't you think?

    Frustrated in Belvedere

    Dear Frustrated,

    Whoa Nelly, have you got it all wrong! The view ordinance protects your views of scenic vistas, such as San Francisco Bay, the Golden Gate Bridge and so on. There's nothing in there about a neighbor's personal activities or into their bedroom or that matter. Have you recently watched Rear Window? or maybe it's Fatal Attraction.

    Sorry.

    Land Use News

    PS There is a law that covers this by the way. It's called No Peeping Toms and carries a sentence in the local pokey.

    Wednesday, July 17, 2013

    More on Tree and Views

    Your neighbor hands you an ultimatum. Cut down those trees or else!
    Or else what?  Or else go to court.

    Wait. They can't do that, can they?  If this is a tree vs. view case in any of the towns that have a tree/view/sunlight ordinance, they can, but not quite that fast. 

    All the tree regs in all the towns with ordinances provide a step by step method for resolving your dispute before going to court. Sausalito even has a Tree Committee. All the towns require informal discussion first, followed by an attempt to mediate.

    And by the way, the one initiating the mediation doesn't get to choose the mediator. It needs to be done mutually. If they suggest one, don't agree until you've had a chance to review the person's bona fides and look into some alternatives.

    If you don't want to mediate, arbitration is an option with a neutral arbitrator, (professional or not), or with the Tree Committee in Sausalito. 

    Don't want to arbitrate? You can get an informal opinion from the Tree Committee, and  if you get invited to appear, you better show up, or it will be your burden to overcome their opinion in court if it goes against you.

    Make sure you get your own consulting arborist to evaluate the situation and a competent tree attorney to represent you.  

    A note on mediation: A while back, I asked all the towns with tree/view/sunlight ordinances in Marin County if they provided a list of neutral mediators for tree disputes. None did. That's too bad, because it's hard to know on your own what mediator has experience with your kind of case.  Your arborist may have some ideas.  But remember, the mediator must be mutually decided on by you and your neighbor.

    Consider one that has an expert consulting arborist/tree risk assessor as part of the team. That way, you and the neighbor can save money, save time and get a neutral scientific evaluation of the problem.  You just might save your relationship as well.


    Thursday, July 11, 2013

    Sausalito's Tree Regs - and Whoops!

    On the same day a eucalyptus fell down and went boom across Highway 101 in Sausalito, the City sent out a reminder of its tree regulations:

    From the Marin IJ:


    SAUSALITO

    The city is reminding residents that there is a fine of up to $1,000 for altering, pruning, shaping, trimming, topping or removing any protected, heritage, dedicated or city-owned tree without a tree/alteration permit.

    Among protected trees are any coast live oak on developed private property measuring 4 inches or more in diameter, trees with special significance as deemed by resolution of the City Council as well as city-owned trees.

    When in doubt, call Lilly Schinsing at 289-4134 or email her at lschinsing@ci.sausalito.ca.us with questions.

    Note: A eucalyptus is considered an "undesirable" tree in Sausalito and many other locations.  Know your local code!