Thursday, August 18, 2011

More on Tree Mediation

Property Issues Crop up in Many Different Venues

If you are a lawyer reading this, know that at some time in your legal career, you will come up against property questions. Maybe you are administering an estate and need to determine the true boundaries of the real property. Is there an easement for ingress and egress that appears to be abandoned, but creates a cloud on the title because it’s still there in the deed documents?

Does the neighbor have a menacing looking row of Eucalyptus trees leaning toward your client’s house? Has a fire turned the property into rubble and you’re not sure who is to blame?

Even the most simple personal injury case involving the classic failure to yield collision may have some property management implications. Was the yield sign or line of sight obscured because the adjacent property owner failed to maintain a hedge in reasonable condition?

Did Caltrans let those median pittosporums get too scraggly for proper driving conditions?

All these and more can require expert opinions and evaluations beyond the standard accident recreations or investigations you deal with every day.

There are a number of tree experts who testify on these issues, including forensic foresters, fire ecologists, consulting arborists and others. There are surveyors and land engineers who can help bolster your case. When power line clearances are at issue, or trees improperly trimmed by power company crews cause major fires, liability fingers can be pointed all around; and will be.

Tree Dispute Mediation:

The most frequent issue that arises in my practice is Tree versus View. In towns with prized views of the Bay, these disputes are frequent and often nasty. Neighbor is pitted against neighbor. Sometimes drastic action is taken by one neighbor to retain or obtain a view. I have known people to do midnight tree topping or poison their neighbor’s trees and plants while maintaining righteous indignation that those pesky trees had the nerve to grow into their expansive (and expensive) view.

I have seen people defend the rights of looming eucalyptus, scruffy Monterey pines and scraggly acacias to grow as high as they like, ignoring polite offerings to trim the trees or mediate.

Both sides will say “I don't care how much it costs. It’s the principle of the thing!" when given an estimate of the cost for legal wrangling, including experts, court fees, attorney and mediator fees.

There are no winners in these pitched battles. Neighbors become embittered toward one another no matter the outcome. No amount of money can compensate for the loss of trees, the privacy and screening they provide, shade and shelter, and just plain beauty. On the other hand, messy foliage blocking your view of the Bay may serve no other function then to annoy the viewer. Most often, these disputes build over time until one side cannot take it anymore and fireworks ensue.

Stop the Cycle

How to stop the cycle? Some towns have Tree Committees, made up of volunteers, who will hear disputes and offer advisory opinions. Unfortunately, these citizen boards are composed of lay people, often with little or no understanding of botany or appreciation for the amenities the right trees can provide. Seldom do the disputes end amicably.

And neighbors hesitate to mediate their problems, fearing yet another round of “let’s make a deal” when all they want is what they see to be their rights: “My property, my trees.” “My property, my view.”

Something New - Mediation with a Twist

Twenty years of these same arguments and counterarguments have prompted me to try something new. Our firm, Green Legal Solutions, now offers mediation with a twist. We have teamed up with a consulting arborist and certified hazard tree assessor to act as neutral in mediation on tree issues. Will it work? Only if people are willing to listen to a “scientific” assessment of the problem. If they do, and if they can suspend their own personal animosity, maybe, just maybe, they can find the right compromise that will work. Otherwise, they will be back to hiring their own dueling arborists, go to more mediation and settlement conferences, maybe even to trial, to achieve something that is likely to look very much like what they could have achieved for far less in money, time and aggravation.

Tree Dispute Mediation: Try it in your next tree case.

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