Friday, April 30, 2010
Here's an article from the Marin IJ about the case I last wrote about, a Larkspur woman fighting her neighbors over some nasty Eucalyptus trees. Husband, Ray Moritz, is the arborist for the neighbors. The tree owner vows to take her case to the Supreme Court now that the Court of Appeals said take down the trees.
Posted: 04/27/2010 05:40:57 PM PDT
Neighbors say the 28 eucalyptus trees on Anne Wolff s Larkspur property pose a threat to their homes, and so far, judges agree. (IJ photo/Jeff Vendsel)
A Larkspur woman is vowing to take her case to the California Supreme Court after an appellate court sided with a Marin judge's ruling that she chop down more than two dozen of her eucalyptus trees.
The grove of massive trees took center stage in a trial last year pitting neighbor against neighbor over the touchy subjects of property rights, safety and civility.
Last April, Dr. Anne Wolff was ordered to cut down 28 of her 45 blue gum eucalyptus trees at her Bayview Avenue home in the Palm Hill neighborhood because they were a "clear and continuing hazard," according to a ruling issued by former Marin Superior Court Judge Michael Dufficy.
The 1st District Court of Appeal in San Francisco affirmed Dufficy's decision in a preliminary ruling that will become official on Thursday. Wolff has 10 days to determine if she will appeal to the state's top court, but she said she already has made up her mind.
"We are taking it to the state Supreme Court," Wolff said Tuesday.
There is no guarantee the court will hear the case, but Wolff's attorney, Michael J. Coffino, said important legal issues are at stake.
"The case addresses the standard by which property owners should be held accountable in their ability to control Mother Nature," he said. "If every property owner is responsible for the vagaries of Mother Nature, we have gone down a dangerous slippery slope."
Sausalito attorney Barri K. Bonapart, who represented Wolff's neighbors who were concerned the trees or
their limbs could fall on them, said the appellate decision was correct.
"These trees are nothing to mess around with," she said, adding she didn't believe the state Supreme Court would hear the case. "Eucalyptus trees are very dense. Their limbs can weigh as much as an SUV, 3,000 or 4,000 pounds."
She added that her clients "will be relieved once the trees are taken down."
The appellate court said: "While uncertainty of future harm by itself is not sufficient to obtain an injunction against a nuisance, a reasonable probability of significant harm is. Here, substantial evidence supports the conclusion of a reasonable probability of future harm from failing branches and fire."
Neighbors Michael and Joni Mindel and Catherine and Lawrence Way filed the original suit against Wolff, saying the trees, some of which are more than 100 feet tall, pose a safety threat.
"The fact of the matter is that after 14 years there has not been one cent of damage to the Ways' or Mindels' homes," Wolff said.
During storms the Mindels, who also live on Bayview Avenue, have slept in different parts of their house because they were concerned about damage from a falling tree, and they have even left the home entirely, according to court documents.
They were so concerned that 10 years ago they offered Wolff $50,000 to remove the eucalyptus trees and replant other species in her yard. Wolff, who purchased the property in 1994 - before the plaintiffs moved to the neighborhood - declined.
The Ways, who live on Elm Avenue, have had sleepless nights and have formulated evacuation plans in case a tree or heavy limb hits their home, according to court records.
During the trial Bonapart said her clients were "terrified" by the prospect of damage caused by the trees, and Larkspur fire officials deemed them a fire hazard.
In his ruling, Dufficy cited the plaintiffs' arborist's report, which identified 28 trees in danger of falling on the neighbors' property. While the Dufficy ruling favored the plaintiffs, it also required all parties to split the cost of removing the trees, estimated to be in excess of $50,000.