Thursday, August 18, 2005

TIMBER TRESPASS

The assault

For the past several years you’ve enjoyed the privacy and comfort of your large pine trees on the edges of your property. They keep your yard cool in summer and screen the neighbors’ pool.

Then one day you return from a hard day at work to find your beloved trees massacred. Their branches hacked to within an inch of their life, the trees are skeletal remains of themselves.

You think you can see the neighbors peeking around the corner of their newly exposed house, grinning slyly.

What has happened?

All too often neighbors have vastly different opinions about the trees that separate their lots. To you, the pines were a sheltering green zone, providing a sense of tranquility and home to birds. To the neighbors, they were messy nuisances that shaded their garden and dropped unsightly debris on their lawn. They may even have considered them a view obstruction or fire hazard.

One day, the neighbors had enough. Someone had told them they could trim on their side of the property line, so they hired the Chop and Drop Tree Co. to come over and do just that.

Unfortunately, Chop and Drop got carried away and started hacking on your side of the line. Your beautiful trees are now a mess.

Worse yet, your neighbors never even consulted with you. You would have agreed to a little reasonable thinning for their garden’s sake.

But now you are angry. What should you do?

What could have been amicably resolved between good neighbors has turned into an ugly feud. The neighbors have committed what’s known as “timber trespass” or “trespass cutting of amenity trees.”

The law

Contrary to what it sounds like, “Timber Trespass” isn’t when a member of Earth First takes up residence in an endangered redwood tree in the middle of an old growth forest. It’s any time someone crosses onto the property or air space of another, and causes damages to their trees.

If your neighbor goes on to your property and removes vegetation there, it’s a timber trespass. Trees have value, monetary and non-monetary. These can include aesthetic, architectural, energy conservation and wildlife habitat.. They provide shade, privacy and a sense of emotional well being to the people who tend them and appreciate their beauty and the natural setting they offer. The trees can also provide critical slope stability and erosion control.

To lose your tree can be a devastating loss.

That’s why the laws in California and many other states provide stiff penalties for the unlawful removal or damage of another’s trees. Iin most cases you can even recover two or even three times the actual loss, and even, in certain circumstances, emotional distress damages.

The law provides that for the intentional injury to “timber, trees, or underwood upon the land of another, or removal thereof,” the damages to be awarded are three times the actual value of the loss. Where the wrongful cutting is unintentional or negligent, “the measure of damages shall be twice the sum as would compensate for the actual detriment…” (California Civil Code section 3345: Wrongful Injuries to Timber, Trees or Underwood.)

In fact, courts have found that because of people’s special relationship to their trees, this is one of the unusual situations when you may be able to recover for emotional distress for a purely property damage claim. In an early case on this subject, the California Supreme Court stated that once you establish that a trespass or nuisance has occurred, “an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom." (Herzog v. Grosso (1953) 41 Cal.2d 219, 225) A more recent case stated it this way: “Mental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment.” (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287-288, quoting Sturges v. Charles L. Harney, Inc. 165 Cal.App.2d 306, 323.)

The remedy

If this happens to you, make sure you document the loss immediately, contact a consulting arborist who can evaluate the monetary damages, and call your insurance company. It helps if you have both “before” and “after” photos to support your claim. Immediately photograph the damage and write down an accurate timeline of events. The arborist will use a number of factors in evaluating your loss, including species, size, health, location of the tree on your property and its importance for privacy, shade, wind screen or other values particular to your property.

A good land use attorney experienced in tree law can help you determine the best course of action.

If your neighbors have been complaining about your trees, it’s always best to try to work it out informally or through mediation before things escalate to a full bore timber war. It pays to keep track of your trees health, their effect on neighboring properties, how fast they are growing and other factors that can come between even the best of neighbors. In fact, courts have found that homeowners have a “duty to inspect” their trees and property. Ignorance is not an excuse.

In the case of mature trees on your land, an ounce of prevention can be worth a ton of cure.

Dotty E. LeMieux

Printed in the Marin Scope papers, August 15, 2005

Friday, August 12, 2005

Tree Law in the News

Below is an article hot off the presses, by Marin's own Beth Ashley, a wonderful reporter, columnist and activist. Notice just about everybody she talks to in the article is a woman. Yeah! Moi included. Yes, this is what I do for a living, along with the environmental law/action and campaign consulting. To me, it all goes together.

Note that the "consulting arborist" identifed as my husband, is Ray Moritz, and he's the one who advised Drake High School not to cut down that grand old Redwood tree to make way for the astroturf. My husband - A hero to students and trees alike!

Enjoy the read:

Beth Ashley: Power can be rooted in the oddest places

Beth Ashley

Marin Independent Journal 8/10/05

SUDDENLY, I have more power than I suspected.

Larkspur officials informed me recently that the homeowner four houses away in my Greenbrae neighborhood wants to cut down a palm tree in his yard. Would that be OK with me?

Well, duh. I thought anyone who owned a tree had an absolute right to cut it down.
Silly me.

It turns out many Marin towns and the county itself have rigid rules on trees and their fates. And people like you and me have power over certain trees in someone else's yard.

I can object to my neighbor's cutting down his palm because it is a "heritage tree," so large that it has a privileged life of its own.

Recently, when a landlord in a Mill Valley neighborhood wanted to cut down an old oak in his front yard, he had to inform the city first, and the city informed the neighbors, and several of them protested. They liked the tree and wanted it to stay.

A hearing was held, and - because the tree is certifiably sick and in danger of falling - permission to cut it was granted.

Attorney Dottie LeMieux, who specializes in land use and property rights, and who is married to a "consulting arborist," knows tree regulations like the back of her hand.

- Tiburon, she says, has the toughest tree ordinance in the county.

- Several towns protect some trees as heritage trees - so designated by their size and age and sometimes by species. An oak, for instance, is usually considered a treasure - hands off! Mill Valley protects oaks, madrones, redwoods or Douglas firs of a certain diameter. But according to city parks official Ron Misurrace, "It's OK to cut down a bay, pine or cypress, as long as it's on private property."

- Some trees, considered a nuisance, aren't protected at all. Most cities and the county would be delighted if you cut down a eucalyptus, and some towns - Corte Madera, for instance - forbid the planting of nuisance trees like eucalyptus, Monterey cypress, juniper, acacia and Lombardy poplar.

Trees can be the source of bitter neighbor-to-neighbor feuds. "A tree is part of a man's home," says county mediation services chief Barbara Kob, "and a man's home is his castle."

All kinds of issues arise: your tree is blocking my sunshine; the roots of your tree are buckling my sidewalk.

One of the biggest sources of neighbor disputes arises when one guy's tree blocks the other guy's view.

Tiburon, Belvedere, Sausalito and Corte Madera have view preservation ordinances - you had better not let your trees grow tall enough to cut off your neighbor's view of the bay, the bridges, the hills or, in Belvedere, even cut off his access to sunlight.

Ellie Bloch, a veteran mediator for the county, says disputes over views, next to divorces, are the most challenging to mediate.

"People covet their views and think the view is their right. But there are many perceptions of what is a view. We're dealing with people's feelings. It's hard to describe."

Bloch,who lives in the county area of Tiburon, says she trims her trees to accommodate her neighbor. "By law, I don't have to do it, but they asked me to do it, so I do. Many, many people do the same."

Others, however, end up in mediation or in court.

"Some people want privacy from a neighbor, so they plant trees for a sound barrier, a wind break, or to fence their property off from their neighbor's," Bloch says. "One neighbor might not mind, but when a new person moves in and wants more view, they often end up in a fight."

Tree disputes are often not about trees, LeMieux says; "they're about neighbors who don't like each other."

Sometimes neighbors do "awful things" to one another's trees, she says. "They'll put poison at the base of the tree, or cut down a tree because it was bothering them and then say it was a hazard."

Sometimes neighbors talk, but often resort to "self-help," she says.
LeMieux warns that the last thing you should do is to take matters into your own hands. If you do, lawsuits may await. People will sue if you trespass on their property (and sometimes win triple damages). They'll sue if you trim a tree that leans over your fence. Sometimes the courts even allow damages for "emotional distress" over modifications to their trees.

Trees: the new family pets!

LeMieux had a case in which neighbors squabbled over a line of trees close to the property line. "My clients loved these trees, which provided shade, beauty, privacy. But they came home one day and found their neighbors cutting them down. They called the police."

Accusations flew back and forth that were "way beyond trees," she says. The offenders "paid a fair amount" to settle the case.

Tree disputes are usually lightning rods for other issues, says Barri Bonapart, a tree law specialist in Sausalito. "There's usually some other offense that's bothering them - like, you did not invite them to your daughter's wedding."

Tree disputes between neighbors "are almost worse than family law," Bonapart says, "because in a divorce, at least, one of the parties moves out."

Some towns have tree committees that try to come up with solutions. If the problem is about a view, the tree owner may be required to "make a see-through window" in his trees. Some cities set up long-term monitoring situations, so the views are constantly preserved. Sometimes, when a tree has to be removed to accommodate new construction, cities will require planting a new tree.

Trees, according to the founder of Marin Releaf, a 15-year-old San Rafael-based organization, are essential to human health: they purify the air we breathe.

Sandra Sellinger and her volunteers are pushing for an agency that would take care of the street trees that were once planted curbside by cities but which now seem to fall on property owners to maintain.

Over the years, Marin Releaf has planted trees where trees were needed - in parks and school yards, at China Camp and at the Marinwood-St. Vincent's interchange.

Even when the trees aren't their own, some Marinites take their presence personally. When Dominican University cut down 42 eucalyptus trees - eucalyptus trees! - on Grand Avenue in 1999, the outcry was so great that the city fined the university and demanded that new trees be planted.

Last year, when officials at Sir Francis Drake High School planned to remove a 100-year-old redwood tree to renovate an athletic field, students raised such a ruckus the school board reversed itself.

Trees have been important in Marin for at least the last century. The venerable Outdoor Art Club in Mill Valley and the now-defunct San Rafael Improvement Club both were early planters and protectors of trees.

In the 1950s, a maiden lady named Georgia Wintringham made San Rafael trees her special bailiwick, ever on the lookout for sick trees and doing whatever she could to encourage tree planting.

How much do we value our trees?

Recently, Bonapart had a client who contended that a neighbor cut the roots of his 90-foot tree, damaging it so much it had to be removed. The case was settled for $40,000.