Wednesday, May 11, 2005

Land Use News Launch

Welcome to the Land Use News!

This is an informative site for news about land use issues for attorneys and lay people alike.

I will post articles I write and publish elsewhere and info on interesting cases.

If you'd like to post, feel free to add to Comments.

Here is the first article, initially published in the Marin Scope Newspapers:

WHEN YOU CAN'T SEE THE FOREST FOR THE TREES - Literally

"Every body does not see alike.... The tree which moves some to tears of joy
is in the Eyes of others only a Green thing that stands in the way." (from
The Complete Writings of William Blake (1957) p. 793.)



Homeowners have a love-hate relationship with trees.

We all appreciate the sheltering arms of our own well tended amenity trees; we nurture Heritage Oaks and cherish our prized Japanese Maple.

But what do we do when our neighbor's trees become a nuisance, blocking views of
distant hills, ocean or forests?

Trees are living organisms. They can grow to be unwieldy straggly things that drop
their branches all over, threaten to fall on unsuspecting bystanders, or plop their
bulk squarely in your viewshed.

If you are like many Bay Area homeowners graced with hillside or coastal living,
you probably know just what I'm talking about. Your view of the ocean, never more
than a precious triangle to begin with, may now all but obscured by some runaway
Eucalyptus trees two streets over.

Your view of the peak of Mt. Tamalpais is shrinking behind scruffy delinquent pines
on the lower slopes. You bought your Lake Tahoe home for the view of the silvery
water edged with softening pine trees along the shore, but now that view has been
commandeered by renegade Cypress who have no business in the neighborhood in the
first place.

What's a law-abiding homeowner to do? Here are a few potential remedies for the
most common view versus tree problems.

Can the Trees be Considered a "Spite Fence?"

California law recognizes that a "fence or other structure in the nature of
a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained
for the purpose of annoying the owner or occupant of adjoining property is a private
nuisance." (From California Civil Code Section 841.4 - Maliciously Erected
Fences)

Courts have decided that a row of trees if planted for the purpose of annoying the
neighbors can be considered a structure for purposes of enforcing this statute.
Such a structure is commonly known as a "spite fence."

Spite fences reached a height of notoriety when in the 1870's, Charles Crocker wanted
to buy a whole city block on Nob Hill to build his mansion. One neighbor refused
to sell. Crocker simply bought all the land around the holdout landowner and
built a 40 feet high fence, surrounding the property. No laws protected the hapless
property owner in those days, and he eventually caved in and sold to Crocker.

In a recent case in the town of Yreka, the Third District Court of Appeal said yes,
a row of trees planted to block a neighbor's view could be seen as a spite fence
and be deemed illegal. (See Wilson v. Handley (2002) 97 Cal.App.3d 1301.)

If your dispute gets to a court, the intent of the neighbor planting the trees becomes an issue. If a court determines that the purpose of the planting is to mark the boundary line and to annoy the neighbors, then the court could reasonably conclude that the trees "unnecessarily" exceed 10 feet in height.

Is there a view Ordinance in Your Town?

Many towns have ordinances setting forth standards for maintaining views. There
is no general California law about views. Some towns cherish certain trees such
as Redwoods and have strict guidelines for their removal or even trimming, while
others see them as nuisances, interfering with neighbors' views of Bay or hillsides.

In Marin County, the Town of Tiburon leads the way with the most protective ordinance.

It provides in part:

"The Town recognizes that certain types of trees, because of potential breakage
and fire hazards, or their potential for creating view blockage due to rapid growth
and tall height at maturity, should be prohibited from being planted without special
permission. These trees are referred to as 'undesirable trees.'"


You need to check with your town planning department to see what the rules are.
They are often posted on line. In those cases where view ordinances exist, there
is often a "tree committee" who you can appeal to; don't forget that many
towns and counties have mediation boards whose services are available for a nominal
fee, before you get into a full bore hearing, hiring attorneys and ending years
of peaceful coexistence with your neighbors.

Covenants, Conditions and Restrictions

Are you in a planned development with a set of covenants, conditions and restrictions
that control what homeowners can and can't do with their trees in terms of obstructing
neighbors' views? If so, you may be able to get your neighbor to trim his trees
to restore your lost view. Check with your homeowners' association to see what the
process is in your particular development.

By consulting skilled arborists, you can often set up a plan for "windowing"
the offending trees, so that the neighbor keeps his privacy and shade, while you
get your view back. If no ordinance or cc&r's cover your situation, offer to
pay for professional trimming to restore your view. Even if you do have an ordinance
in play, consider working cooperatively with the neighbor first, before resorting
to hearings or the courts. The cost will be small to maintain cordial relations
and enjoy your view at the same time. Invite the neighbor over to enjoy the view
with you over a glass of wine or cup of coffee as a thank you.

copyright Dotty E. LeMieux

Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County, California, and can be reached at coastlaw@earthlink.net.

3 comments:

Dotty LeMieux said...

THIS FROM KATHY IN LARKSPUR WHO HAD TROUBLE LOGGING IN:

Another topic might be parking - this seems to get folks into real
tizzies - "that space is mine" just because it's adjacent to their
property. We have a large lot home on the corner, and they have three
street frontages, as it's a block that is one-house deep. They could
park about 16 cars on their frontage, maybe more. But, their frontage
belongs TO THEM! And when others park there, we have to cow tow to
them! Think this could be interesting to learn more about.

And implied dedication. I've a pet peave over off Doherty - the kids
always walked thru a euc/acacia filled space between the Hall School
driveway and Larkspur Plaza Drive. Then, one day, there was a crappy
little fence set up. And no trespassing signs. Well, the fence
vanished, but signs stayed up. For awhile. I think there are more
signs or barricades. The kids use this to shortcut to waiting parents
or to walk down L. Plaza drive. It's been used for decades. I tried
to get the school district to let the L. Plaza homeowners assn. that
this had been used for decades and should stay....but they declined to
get involved. I don't think that they should have gotten away with the
barricade. It forces way too many kids to pass around the little
corner where kids are already piled up to cross Doherty. Well, just
another idea!

Kathy

richard said...

A minor quibble regarding the spite fence constructed by Charles Crocker around his unwanted neighbor's property -- the neighbor, Nicholas Yung, never sold out to Crocker. In fact, both men died before the fence was removed and the property consolidated. A sad comentary on the futility of such childish expressions of anger...

Dotty LeMieux said...

Thanks to historian Richard for setting the record straight on the Crocker Spite Fence. Truly this epitomizes the lengths to which people go in neighbor disputes.

Dotty