Tuesday, August 17, 2010

Cut Down NOT thy Neighbor's Tree

An article in a recent IJ (View vandal trashes trees at McNears Beach Park, August 14, 2010) discusses a common problem in the Bay area: the conflict between trees and views. So common are acts of chopping, poisoning, root cutting, topping and other damages of one neighbors’ trees by another, that there ought to be an eleventh commandment written just for Marin: “Thou shalt not destroy thy neighbor’s tree.”

These offenses are not confined to Marin, but anywhere trees and views collide.
Nor are they confined to private property, as the IJ story attests. The “view vandal” in the IJ story may have been someone in the nearby Marin Bay Park development. In fact, states the article, police have narrowed their focus to one home, which to all appearances is the one most directly benefiting from the tree cutting. Check the line of sight, and you often can find the culprit in these cases.

One of my earliest cases as a lawyer in Marin involved trees cut in a state park by a neighbor who was told that “everybody does it,” and whoops, he got caught. Luckily for him, he wangled a civil compromise (restitution) instead of doing jail time.
This sort of “self help” most often takes place between neighbors. The conflict may simmer for years; trees grow taller; views get smaller; tempers get shorter. The next thing you know, the chain saws are out.

You may get your view that way, but it’s also a good way to lose a bundle in a nasty lawsuit, as well as any good will with your neighbors. Trees have value, often in the thousands of dollars, and, because of the uniqueness of trees and the personal violation their destruction represents, damages for deliberate cutting can be tripled by a court.

By the time the neighbors are facing each other across a conference table in a high priced lawyer’s office, there’s often more than hurt feelings and dead timber involved. Try to nip tree disputes in the bud.

Talk to your neighbor. Tree blocking your view, or maybe dropping sticky sap all over the family sedan? Make sure the neighbor is aware of the problem, and offer to help pay for trimming or removal and replacement with a more appropriate (and lower growing species.)

Does your town have a tree committee and a procedure in place for resolving disputes before litigation? If so, use it; it’s a prerequisite for going to court in municipalities with a tree and view ordinance. In Marin, that’s Tiburon, Belvedere, Sausalito and Corte Madera.

If there’s no such ordinance, try mediation before either self help or litigation. There are many attorneys, retired judges and even trained lay people offering mediation. Each party usually pays half the cost, and you both must be willing to see the other’s point of view. But remember this: if you end up in court, the judge is going to strongly urge mediation anyway, and by that time, positions may be set in stone, and small fortunes spent in attorneys’ fees and costs. Mediate early before things escalate.

If you must sue your neighbor, be realistic. Get an expert tree appraisal from a consulting arborist first. If damages are less than $7500, try Small Claims Court.

Losing your trees is a traumatic experience for anyone, especially when they are lovingly grown and tended over the years, shelter song birds, and provide the privacy of a leafy arbor over your neighbor’s yard. Think of that when you fume about the loss of a view. Talk to the neighbor over tea or a glass of good pinot grigio and try to work out a compromise that you both can live with before it’s too late.

Dotty E. LeMieux

Dotty E. LeMieux is an attorney in San Rafael specializing in tree and property disputes and general environmental law and mediation involving tree issues.