Tips for Homeowners Seeking Views

If you live in one of the communities with a tree and view ordinance or your ccr's define protected views, here are a few simple tips to insure you retain the views you had when you bought your property without getting into a lengthy, costly and acrimonious legal spat with your nighbor.

1. Document existing views. Take photographs when you move in of the views that you want to preserve, noting the location and height of trees that may become a problem in the future.

2. Meet your new neighbors and discuss with them your desire to maintain good relationships and good views, so that they can understand your interest in seeing their trees do not become too tall or bushy as they grow.

3. You may want to offer to share in tree maintenance costs from the beginning; after all, it is the investment in your property you are insuring, as well as a future cordial relationship with the neighbors.

4. Continue your photographic documentation of the trees as they grow (if they do), and discuss any potential problems as they arise.  Are the trees starting to encroach the on the view? If you've had success with 1-3, your neighbor is likely to be willing to trim the trees before they become a real issue between you.

5. Know the rules for your community or development, including the procedure for filing a claim, going to mediation or other dispute resolution methods recommended.

6. If you need to invoke the process, you will be armed with knowledge and with a paper trail of your efforts to preserve the view amicably.

7. And don't forget to try mediation first, before you go to court (most tree/view ordinances require you ask your neighbor to mediate before you may bring a lawsuit). If you do get to court, the judge is likely to send you to mediation anyway, so why not try first, agreeing to use a skilled mediator and even a mutually agreed upon neutral expert to advise you and the neighbor of how to remediate the problems to the satisfaction of both parties?

When Trees go Rogue

Are trees like unruly teenagers, disobedient and rebellious? Or are they just following their instincts and their natural life cycle, when things go wrong? It could be a little bit of both and (as with the teenagers) most often the "parents" or tree owners have more than a little to do with their disruptive behavior.

People will plant the wrong trees in the wrong places. They don't mean to, they just didn't go to the right parenting classes. Monterey pines and many other species just do not belong in small back yards in Marin County.  They are often shallow rooted, drop debris, including large branches and are subject to pests and diseases that can ravage them and their neighbor trees. Eucalypts are prone to whole branch failure. You do not want to be under one of them when the wind is blowing.

We have handled several such cases, two most recently, where diseased and in one case, practically dead as a doornail, trees leaned precariously over the homes of nearby neighbors.

Neighbors feared going into their own yards, and were advised by experienced tree risk assessors that the tree could easily pierce the roof. Imagine cowering in corners of your own home, having had to abandon living, dining or sleeping quarters!

Neighborly pleas, arborists' reports and even letters from attorneys fell on deaf ears. In both cases, emergency court orders were the only remedy.  Luckily the orders were in place before the trees could do their damage.

Don't get me wrong; we try to get the neighbors to try to to resolve these issues between themselves first. We even offer mediation with an expert who can provide sound scientific information on the health of the trees.  Can they be saved? Sometimes. Can sneaky roots that have invaded pipes and sewer lines be turned back? Often. And here's the interesting thing: except for those cases where swift action by a stern judge is called for to avert an impending tragedy, most court cases involving trees, neighbors and property end up being sent to mediation, the courts having more pressing matters to attend to, such as violent crime or theft of valuables.

So why not mediate your tree issues first, before they become costly court cases? Save time, money and maybe even your relationship with the neighbors. Often taking this route makes everyone feel more kindly toward one another, and neighbors have been known to pitch in to help pay for trimming or removal of the offending tree, maybe even replacing it with a more "friendly" species.

Trees and Views in Tiburon California

Some towns are more protective of their residents' views and access to natural light than others. Do you have a Bay view? Can you see the magical City of San Francisco out your window? Does the sun bathe your garden in a rich glow to help keep the flowers bright and healthy and provide you with a sunny disposition?

Or are some trees down hill starting to encroach on the vista and block out the rays? If you live in the Town of Tiburon California (and many others, but we're focusing on one today), there are steps you can take to restore what you probably paid a premium price for when you first bought in a bucolic location.

Chapter 15 of the Municipal ordinance is entitled: 

Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES 

To give you an example of how expansive the protected views can be in a town with such an ordinance, here is an excerpt from the code (under section 15-2 Definitions):

"View" means a scene from the primary living area of a residence or the active use areas of a nonresidential building. The term "view" includes both upslope and downslope scenes, but is generally medium or long range in nature, as opposed to short range. Views include but are not limited to skylines, bridges, landmarks, distant cities, distinctive geologic features, hillside terrains, wooded canyons, ridges and bodies of water.

Some additional examples are: 

(1) San Francisco Bay (including San Pablo Bay, Richardson Bay, and islands therein);

(2) The San Francisco-Oakland Bay Bridge;

(3) The Golden Gate Bridge;

(4) The Richmond-San Rafael Bridge;

(5) Mount Tamalpais;

(6) The Tiburon Peninsula or surrounding communities (including the city of San Francisco).

Protecting your view and access to light does not allow you to unfettered tree removal. There are suggestions such as trimming, windowing or selective thinking to restore the view while providing the neighbor with shelter and privacy. And you are only entitled to restore the view and sunlight access that existed when you moved into the property.

And there is a strict procedure to be followed before any action is actually taken. For instance, you must first try to work things out with the neighbor amicably. If this does not work, you next offer to go to mediation with the neighbor. This is, in the opinion of this writer, a prudent move, one that can save the homeowners time, money and a lot of additional aggravation.  

If mediation fails, or your neighbor does not agree, you may prepare a tree claim, outlining your grievances and next offer the neighbor the opportunity to go to binding arbitration. Details on preparing your claim are outlined in the ordinance. Before undertaking any of this, read the ordinance carefully.

If all else fails, you may bring suit against your neighbor. While this may become your only option, and you may well prevail, this is sure to be costly and lead to ill will on all sides. Think about it carefully.

One note: neither Tiburon nor any other Town or City that I'm aware of provides names of mediators experienced in tree law and view disputes. If they did so, mightn't it be more likely that homeowners would choose that route to resolve their differences?

Trees in Your Town - Know the Law

Did you know that many Cities, Towns and Counties have tree ordinances? Some have view and sunlight ordinances too. All the rules are particular to the location, but they most often call for a permit to cut down trees of a certain size, type or number. If you want to cut down one of the "desirable" trees in your town (say a redwood in Mill Valley or an oak in many places), you usually will need an arborist's report, giving your reasons, such as disease or decay. Use this handy site for finding your town's ordinance. 

Sometimes, there will be hearings and your neighbors may speak out. When, as in the last post on this blog, someone wants to cut a heritage oak for construction, where those trees are protected, that might not be a good enough reason. Especially if the neighbors cry foul.

On the other hand, if you have an "undesirable" tree, such as Eucalyptus just about anywhere, acacia or fast growing pines or cypress (note, if you live on the Monterey Peninsula, proceed with caution if you want to cut a native Monterey cypress), your neighbors may cheer. They may even press the Town fathers to make you take down these trees if there is a threat of their falling on their property.

I recently had a case where an almost entirely dead tree of the "undesirable" type loomed over my client's house, making her fear to be in her own backyard. A certified tree risk assessor deemed it a hazard, but it took a judge, and a stern warning about contempt of court, to get the tree down.

This is a costly way to proceed.  If your neighbor's tree is a threat to your well-being, make sure the threat is real, talk to your neighbor about it, know what the law says in your Town and consider mediation before bringing in the legal guns.

Oak Saved in San Anselmo!

So the tree was saved in San Anselmo. For now. Read it all here: http://www.marinij.com/marinnews/ci_24276836/heritage-oak-san-anselmo-dodges-ax?IADID=Search-www.marinij.com-www.marinij.com

Heritage oak in San Anselmo dodges the ax

By Richard Halstead
Marin Independent Journal

Posted:   10/09/2013 05:13:36 PM PDT

Click photo to enlarge

Linda Jensen stands on her front porch on Wednesday, Sept. 25, 2013

A group of San Anselmo residents succeeded Tuesday night in its bid to save a heritage, white valley oak tree from being felled.

"Truly, it is a miracle," said Linda Jensen, who led the fight to save the tree.

Due to the labyrinthine process by which the matter was handled, the tree was saved by just two votes of the Town Council, and despite the fact the town could face a lawsuit as a result of the decision.
"The whole thing was a little unclear to me; it was very complicated," said Michiko Conklin, owner of the property where the oak is located at 134 Madrone Ave.

Public Works Director Sean Condry initially granted Conklin permission to remove the tree. Conklin says she must cut down the oak because its roots are damaging the foundation of her house. But Jensen, who fears the removal of Conklin's tree could lead to the death of several white oaks on her adjacent property, paid $500 to appeal the decision to the Town Council.

On Sept. 24, the council voted 3-1 to grant Jensen's appeal without prejudice, which meant that Conklin would be granted a second opportunity to change the council's mind. Councilman Jeff Kroot, who is an architect, recused himself from that vote because he has been hired by Conklin to add a bedroom to the house.

On Tuesday night, the council deadlocked 2-2, with Kroot once again recusing himself, over whether to reverse its decision on the appeal. Councilmen Tom McInerney and Ford Greene voted to uphold the appeal while Councilwomen Liz Dahlgren and Kay Coleman voted to reverse the appeal. Since a majority vote is required to reverse a council decision, the appeal was upheld.

McInerney and Greene stood their ground despite that Conklin's lawyer, Neil Sorensen, made veiled threats that Conklin might sue the town over the matter.

In a letter Sorensen sent to the council prior to Tuesday's meeting, he wrote, "Since the tree is clearly causing damage to Ms. Conklin's house, the town may be subject to significant liability if it declines the tree removal permit."

Sorensen made similar comments during Tuesday night's meeting.

"His comments were, in my view, counterproductive," McInerney said Wednesday. "I felt that the homeowner had not met her burden of proof to justify cutting down the tree, at least consistent with our ordinance."

Under San Anselmo's town code, which provides special protection for "heritage" trees, Conklin had to demonstrate that cutting down the tree would be a necessity for the economic enjoyment of her home.

"I just wasn't convinced this work was necessary," McInerney said. He added that the town's attorney advised that the council had sufficient grounds to make that ruling.

At Tuesday's meeting, Conklin provided new reports from an arborist, Ed Gurka, and an engineer, Peter Nissen, who stated that the tree's roots are undermining her house's foundation. The arborist and engineer were recommended to Conklin by town staff and reaffirmed similar evaluations provided by an arborist and engineer that Conklin had previously hired.

Public Works Director Condry told the council Tuesday that the foundation of Conklin's house can be designed to bridge the roots at an estimated cost of $10,000 to $25,000; it is estimated it will cost $11,000 to remove the tree. Experts differ over how fast the tree's roots will grow and how long that solution would last.

Jensen said people who want to save the tree have offered to work with Conklin in an attempt to reduce the cost of the work. Conklin's plans to add a bedroom to the house could be jeopardized by the tree's preservation, since she would need space for additional parking for approval of the addition. But Conklin says that has nothing to do with her bid to remove the oak.

She said Wednesday, "I do not know what we're going to do at this point."

Contact Richard Halstead via e-mail at rhalstead@marinij.com

Saving San Anselmo Heritage Tree

Read this article in the Marin IJ about certified tree hazard assessor, Ray Moritz, my hubby, saving a heritage oak tree a neighbor wanted to cut down. At least for now.  Hearing was last night.

http://www.marinij.com/marinnews/ci_24176704/san-anselmo-council-grants-reprieve-heritage-oak-tree

San Anselmo council grants reprieve for heritage oak tree

By Richard Halstead
Marin Independent Journal

Posted:   09/25/2013 05:11:22 PM PDT

Linda Jensen stands on her front porch on Wednesday, Sept. 25, 2013, in San Anselmo, Calif. She wants to prevent removal of one of a group of large oak trees behind her which the home owner next door wants to cut down. (IJ photo/Frankie Frost) Frankie Frost

Click photo to enlarge

Linda Jensen stands on her back deck on Wednesday, Sept. 25, 2013, in San Anselmo, Calif.  .

A heritage white valley oak tree in San Anselmo received a stay of execution Tuesday night.

The San Anselmo Town Council delayed a decision on whether to allow Michiko Conklin, the homeowner at 134 Madrone Ave., to cut down the tree on her property. Conklin says the roots of the 300-year-old oak are undermining the foundation of her house.

Public Works Director Sean Condry granted Conklin permission to fell the tree, but Conklin's neighbor, Linda Jensen, appealed the decision to the Town Council. Jensen, who went door to door passing out flyers to alert the neighborhood about the meeting, said more than a dozen people spoke Tuesday night in favor of preserving the oak.

"There was one 7-year-old girl whowas awesome," Jensen said.

Conklin said she was surprised that the council didn't reject Jensen's appeal "because my situation had met the letter of the law."

"I guess they feel they need more information," Conklin said.

Conklin has also submitted plans to add a bedroom on the side of the house where the oak is now located, but she said that has nothing to do with her decision to remove the tree. Councilman Jeff Kroot recused himself from the public hearing because he was hired by Conklin to serve as the architect for the project, which is currently on hold.

Ray Moritz, a certified tree risk assessor engaged by Jensen, has challenged the conclusions of Conklin's structural engineer, Karl Beckmann and her arborist, Louie Brunn of Marin County Arborists.

Conklin said on Tuesday night the council asked her "to get another arborist and engineer to confirm what information we already have."

Town Manager Debra Stutsman said the council wants more information about the viability and expense of bridging the foundation over the tree roots, what impact there would be to other oaks in the area if the front portion of the yard is paved over as part of the proposed building project and how immediate a threat the roots pose. No date has been set for the council to revisit the issue.
Jensen fears that if Conklin cuts down her tree that it will damage four white valley oaks on her property, since the roots are intermingled.

"I don't want them to die," Jensen said.

Conklin said, "I don't really know what I'm going to do at this point. I don't think I've had enough time to digest the whole situation."

Contact Richard Halstead via e-mail at rhalstead@marinij.com

Questions we'd love to see Number 3

This is a real question, asked by a reader of a site for lawyers, with my answer.

Made my day:

If an actual UFO/SpaceShip lands in my back yard can i charge money from visitors or will my land be government property ?

HI,

I am sorry about the hypothetical aspect of this question, its just a debate between me and my friends on a summer hot day :).

So , if an actual UFO/SpaceShip lands in my back yard can i charge money from visitors or will my land be government property ?

Please answer with all seriousness . (witty jokes are more than welcomed)
Thank you :)

My answer:

You should be so lucky! If you are not whisked away for scientific experiments by the aliens, you will surely be quarantined as another Area 51 (52?) Hold out for a good contract. There may be a slight issue with radiation contamination, for which you will be fined by the EPA and any number of other governmental acronyms.

Homeowners can save time, money mediating tree, neighbor disputes

The problem:

You’ve noticed something has happened over the last few years.  Gradually, your neighbor’s trees have grown into the view you’ve enjoyed for the last decade. One day you realize you no longer have even the narrowest slice of the bay view you loved to watch as the sun set slowly and the sky reddened into beauty.

Is there anything you can do about this? If you live in one of Marin’s cities or towns with a tree and view ordinance (Belvedere, Tiburon, Sausalito, Corte Madera) the answer is yes. In these towns, a homeowner is entitled to restore the view he had when he came into possession of the property, if such restoration is reasonable.  In most cases you are no entitled to an unhindered view, but to a reasonable view.  The rights of the tree owners and the health of the trees are also taken into consideration when deciding these issues.

These ordinances also provide a method for homeowners to address disputes involving trees, views and, in some cases, sunlight. One such ordinance (in Sausalito) even provides a formal body that convenes to hear and advise on such disputes.

What to do about it:

 Here are the common steps tree and view ordinances prescribe:

 1.    Talk to your neighbor about the problem. If you believe and can document that your view of a scenic vista, bay, hills, even other trees, in the form of wooded landscape, has been impeded unreasonably by the growth of your neighbor’s trees, all the ordnances advise talking to the neighbor first. Try to work out a compromise. The neighbor may not have been aware of the growth of his tress, and if you agree to pay for the trimming, may welcome your offer.  This friendly neighbor scenario all too uncommon. Often other issues have come between the neighbors. The tree owning neighbor is defensive about his property rights. The neighbor with the lost view become indignant and talk is not an option.

2.    Mediation. All ordinances require that you next offer to mediate the dispute with a neutral party, one who can listen to both sides without judgment. The hope is the two sides can come to a reconciliation through a facilitator. It is at this juncture that things usually break down.  The cities and towns do not keep lists of skilled mediators, so neighbors are left to their own devices. In most cases, they simply choose to file suit.

3.    Tree Committee hearing or arbitration. Arbitration is another option, but if neighbors turn down mediation, binding arbitration is unlikely.  Sausalito is the only town with the Tree Committee. An aggrieved neighbor has the right to submit the grievance to the Tree Committee which will hold its own hearing. The neighbor complained against has the right to be present and to bring their own evidence or information to help the Committee come to a recommendation. 

If you choose not to attend, beware, since the recommendation of the Tree Committee, creates a “rebuttable presumption” in favor of the recommendation should the case land in a court of law.  That means if you are sued and your neighbor has a finding by a tree committee that your trees be trimmed, the burden of proof is essentially on you to prove they do not unreasonably block the neighbor’s view or that the neighbor never had a view since they owned the property.

Can things be improved:

Having been involved in many of these cases, I believe there may be ways to avoid a costly lawsuit and make homeowner feel better about finding an actual resolution to a vexing tree and view issue.

First, Cities and towns could keep lists of experienced mediators in tree and view disputes. This way, the homeowners could find names of those who have handled these cases before and have reached satisfactory results. When I called some municipalities to ask if they kept such a list, all I talked to said, no, they told people to use Google or the phone book.

Second, mediators could work with experts who would remain neutral and offer both sides the benefit of their expertise. This way, more homeowners would be likely to take advantage of the offer to mediate at the outset and not wait for a judge to send them to a mediator, once positions are hardened, lawyers have racked up expenses and experts are writing dueling reports.
This approach not only saves time and money for both homeowners, it has the potential of preserving the relationship between neighbors. And unless you plan to move anytime soon, keeping an amicable relationship with neighbors is all to the good. 

Nothing Easy about my Easement. Questions we'd like to see No. 2

There is an easement along my property for the back neighbor to get to his house. He doesn't own this property; and he now wants to drive his car down it.  He used to take the bus, and walk, so my hedges have grown large and will not allow the car to pass. 

Now he's all mad at me, and threatening to sue.  I say, no way Jose. The easement is for you to walk down only. What a lazy sob he has become over the years. Now, he think his new wife can drive her car down the eaement too. 

Uneasy about Easement


Dear Uneasy,

You should be. It appears your easement is for ingress and egress, and actually is wide enough for a car to pass easily. (look at the map you sent me). You cannot block the normal access, which listen up, in the twenty-first century (and the twentieth for that matter), is usually by car, especially to a remote back lot like your neighbor has.

That he chose to bus and walk before is irrelevant. He's not as young as he used to be (so what if he snagged a young honey, maybe you're just jealous). Give the guy (and his new wife) a break, and cut back your overgrown bushes (Is that poison ivy, by the way? Sure looks like it from the pictures you sent), or a court of law will undoubtedly make you do it.

Questions we would like to see number 1

Dear Land Use News:

I moved into my home in posh Belvedere California in 2005. At that time, I had a very clear view from my conservatory of my neighbor's bedroom window, in front of which she was in the habit of performing her daily Pilates routine.  As you can imagine, I considered this to be a visual delight.

Much to my dismay, her privet hedge has grown up so as to block my view. I know this is against the rules of the Belvedere view ordinance, which protects views established at the time the property was purchased from unwanted growth of vegetation. This is certainly a good case for a lawsuit, don't you think?

Frustrated in Belvedere

Dear Frustrated,

Whoa Nelly, have you got it all wrong! The view ordinance protects your views of scenic vistas, such as San Francisco Bay, the Golden Gate Bridge and so on. There's nothing in there about a neighbor's personal activities or into their bedroom or that matter. Have you recently watched Rear Window? or maybe it's Fatal Attraction.

Sorry.

Land Use News

PS There is a law that covers this by the way. It's called No Peeping Toms and carries a sentence in the local pokey.

More on Tree and Views

Your neighbor hands you an ultimatum. Cut down those trees or else!

Or else what?  Or else go to court.

Wait. They can't do that, can they?  If this is a tree vs. view case in any of the towns that have a tree/view/sunlight ordinance, they can, but not quite that fast. 

All the tree regs in all the towns with ordinances provide a step by step method for resolving your dispute before going to court. Sausalito even has a Tree Committee. All the towns require informal discussion first, followed by an attempt to mediate.

And by the way, the one initiating the mediation doesn't get to choose the mediator. It needs to be done mutually. If they suggest one, don't agree until you've had a chance to review the person's bona fides and look into some alternatives.

If you don't want to mediate, arbitration is an option with a neutral arbitrator, (professional or not), or with the Tree Committee in Sausalito. 

Don't want to arbitrate? You can get an informal opinion from the Tree Committee, and  if you get invited to appear, you better show up, or it will be your burden to overcome their opinion in court if it goes against you.

Make sure you get your own consulting arborist to evaluate the situation and a competent tree attorney to represent you.  

A note on mediation: A while back, I asked all the towns with tree/view/sunlight ordinances in Marin County if they provided a list of neutral mediators for tree disputes. None did. That's too bad, because it's hard to know on your own what mediator has experience with your kind of case.  Your arborist may have some ideas.  But remember, the mediator must be mutually decided on by you and your neighbor.

Consider one that has an expert consulting arborist/tree risk assessor as part of the team. That way, you and the neighbor can save money, save time and get a neutral scientific evaluation of the problem.  You just might save your relationship as well.

Sausalito's Tree Regs - and Whoops!

On the same day a eucalyptus fell down and went boom across Highway 101 in Sausalito, the City sent out a reminder of its tree regulations:

From the Marin IJ:

SAUSALITO

The city is reminding residents that there is a fine of up to $1,000 for altering, pruning, shaping, trimming, topping or removing any protected, heritage, dedicated or city-owned tree without a tree/alteration permit.

Among protected trees are any coast live oak on developed private property measuring 4 inches or more in diameter, trees with special significance as deemed by resolution of the City Council as well as city-owned trees.

When in doubt, call Lilly Schinsing at 289-4134 or email her at lschinsing@ci.sausalito.ca.us with questions.

Note: A eucalyptus is considered an "undesirable" tree in Sausalito and many other locations.  Know your local code!

Mediate, Don't Litigate that Tree Issue

Got trees? Got views? Got neighbors you're feuding with? Who ya gonna call?

Specialized non-judicial tree, view, neighbor mediation with an experienced tree lawyer and expert neutral consulting arborist/tree risk assessor, that's who.

Save time, money, maybe even your neighborly relationship. Call us BEFORE you go to court.  We may be able to help resolve the thorny issues that arise between neighbors cost-effectively, without resorting to expensive legal proceedings. 

Try it. More info available. Write coastlaw@earthlink.net today. See our website.

The Clients that Never Were - The Case of Eau de Cat

This is what I call the fishing expedition for free advice, a patchwork method employed by many who do not really want to hire an attorney but take advantage of the "free consultation" offer. An offer, may I say, not so much to provide you with free legal to solve whatever problem is vexing you, but to figure out whether I, as a professional, may actually help you with the problem. A 1/2 hour chat over the conference table is no substitute for actual legal advice tailored to the facts and circumstances of your particular case. In this instance, I have no idea if I was the first or the tenth attorney to be so consulted. This does not happen all the time, but often enough to make you wonder how people approach the rest of the lives. 

I do know the free advice crowd is active, as I belong to a couple of legal online groups and the questions fly fast and furious; sometime there is umbrage that the exact answer desired is not forthcoming. Not to mention the many questions coming in to this blog. Not that I mind. I signed up voluntarily. But talk is cheap, and an actual "fix" to a thorny legal question, often is not. I choose to view it as a learning experience for all (hopefully) concerned.

Here is one story of a recent encounter in my office. 

The couple had called ahead about a real estate disclosure problem they had with a home they had recently purchased in an upscale neighborhood.  When they came in for their appointed free consultation, they were prepared with a copy of their purchase and sale agreement some photos of the home.

The wife kept asking how many of “these cases” I had done.  The issue was failure to disclose cat urine odor from a previous occupant, a hoarder and "cat lady" who did not believe in littler boxes.   So cat urine and other unpleasant leftover kitty reminders had permeated all the flooring and even some of the walls.

In any event, the heavy urine smell and staining was not evident when they did their walk through, but the cloying smell of air fresheners in every room was.  

“Did you ask why there were air fresheners all over the house,” I asked. 

“Yes,” said the husband.  

“They said they do it in all the homes they sell,” answered the wife.

“Hmmm,” thought I.

When they went back to the home after the closing, they were struck with the strong scent of eau de cat.

“It was everywhere, especially the back bedrooms.”

They located a former caretaker, who informed them of the former occupant's penchant for rescuing strays, a fact that made him live in a separate unit at the rear of the property. "You couldn't pay me to go in there without protective clothing," he said. "Once a month, I'd swamp it out, and that's that."

Things just went from bad to worse, as the cheap finish put over the floorboards wore way, and even the walls started oozing a brown smelly stain.

They realized the cat smell permeated everything.  “We spent $20,000 on renovations. We had no choice. I am allergic to cats,” said the wife.

They tore out the walls of the back bedroom and replaced them, painted the whole house with the oil based paint, completely redid the floors, and, five months later, have not yet moved into the home.

Then they were back to how many of these had I done. 

“It’s kind of like mold cases,” I said. "They should have disclosed." I’ve been involved in many cases of non-disclosure. But cats, not so much. Who has?

We’ll call you, they said, picking up their few papers and heading for the door, off no doubt, to the next attorney for another installment of free advice.

Our website - GreenLegalSolutions.com

Our webste is up and we'd like to know what you think? How can we optimize the site? How can we be of service to you, the public, with your tree and land use issues in Marin and Sonoma Counties and throughout California.  Please check our site, and then send us an email.  We want to hear from you!
www.greenlegalsolutions.com

Drake's Bay Oyster Controversy - Finally, a Rational Perspective!

In today's Marin IJ, author John Hart, wrote a very clear and persuasive point by point look at the Drake's Bay Oyster controversy in which reason, not emotion, holds the day.  Thanks John. And below is reprinted that piece:

Marin Voice: Finding an oyster accord

By John Hart
Guest op-ed column

Posted:   05/31/2013 05:36:00 AM PDT

Photo of John Hart by david sanger

AS THE AUTHOR of a recent book on Point Reyes, I find myself in a no-man's-land between the fronts in the oyster wars. Here is what I think I know.

Point No. 1: Point Reyes is not a "wilderness park." Unlike classic units of the National Park System, it was not created from federal land in far-off mountains. And the seashore is simply unique in incorporating — with the blessing of Congress — large areas of functioning farmland. The historic use of Drakes Estero to produce oysters is not different in kind from the historic use of adjacent pastures to produce milk and meat.

Point No. 2: Yet wilderness is a valid concept for parts of Point Reyes. The word "wilderness" evokes pristine horizons, but is also a strictly defined legal concept, a zone, within which there are no roads, no resource extraction, and no mechanized access. Even lands that were formerly settled can be placed in this zone, and come to look and feel very wild. About half of Point Reyes, mostly in the south, was zoned wilderness in 1976.

Point No. 3: There was a time when everyone, environmentalists very much included, wanted the oyster farm to continue indefinitely. They also wanted wilderness for Drakes Estero. They got around the seeming clash by endorsing oysters-in-wilderness as a "nonconforming use." IJ letter writer Jim Linford has recently revived this position. It was the Park Service that balked, so a brand new label was invented for the estero and a few other areas: "potential wilderness." The estero would be highly protected but without the wilderness label, so long as the oyster farm was there.

Point No. 4: Congress favored oysters, yet quietly wrote language implying that the farm should leave. These words are not in the law but in one of the committee reports accompanying it. They state, as a general principle, that "potential wilderness" should be converted to full wilderness as soon as possible.

Point No. 5: Congress later revised this instruction. Sen. Dianne Feinstein's rider of 2009 allowed the Secretary of the Interior to renew the oyster farm lease, on existing terms, for another ten years. Since the existing lease included a renewal clause, this might arguably have permitted a longer extension. As we all know, Salazar chose not to extend.

Point No. 6: The Park Service has tried to prove that the oyster farm was doing environmental damage, and it has failed. This is my opinion based on an intensive reading of the Environmental Impact Statement and other documents. Studies should continue. Right now the evidence is just not there.

Point No. 7: I doubt that the oyster farm is actually vital to the outstanding cleanliness of the estero. True, filter-feeding oysters are known to clean coastal waters, and some think they do so here. The Park Service argues that the natural flushing of daily tides here dwarfs any filtering effect, and I am (tentatively) convinced.

Point No. 8: I doubt also that a removal of the oyster farm would bring more pressure on the adjacent farmland. Some believe that, without oysters, pollution from cows would become evident in the estero, leading to a campaign to shut down agriculture nearby. But if tidal exchange is overwhelming, any such effect should be very minor.

If I had been Interior Secretary Kenneth Salazar?  
I would have granted the 10-year extension. I would have asked the scientists to continue their environmental studies, without pressure.

I would have made such critics as Corey Goodman a full part of this process. And I would have asked Congress to make it clear that, if given a clean bill of health, oyster farming could continue.

To my ear, it is not a discord in the special music of Point Reyes.

Follow up on Berkeley Clearcutting. Round-Up in Berkeley?

 Beyond Chron: More about the planned clearcutting and use of herbicide Round-Up in Berkeley:


Public Rallies Against FEMA/UC Berkeley Tree Clear-Cutting Plan

by Randy Shaw‚ May. 20‚ 2013

Hundreds concerned about the future of Strawberry and Claremont Canyons came out to the last public hearing on May 18 to voice opposition and cheer those testifying against the destructive plan. Many expressed surprise over the lack of earlier notice about the project, with my May 16 story--- “FEMA Plans Clear-Cutting of 85,000 Berkeley and Oakland Trees” ---the first news many got of this potential environmental outrage. Of the many arguments made against the plan, the greatest concern involves the proposed use of over 1000 gallons of herbicide, including the notoriously toxic Roundup. Many also offered a powerful challenge to the idea of destroying “non-native” plants, arguing that its logic ---typically associated with rapidly burning non-native eucalyptus trees---ignores other fire hazards including those caused by the clear-cutting.

As a longtime activist and author of books on the power of grassroots activism, it is wonderful that so many people altered their schedules to attend a Saturday hearing at Oakland’s Claremont Middle School on a very busy weekend to save Strawberry and Claremont Canyons. This was people power in action, and those unable to attend still have a month to submit public comments (to do so, go to http://ebheis.cdmims.com, or send an email to EBH-EIS-FEMA-RIX@fema.dhs.gov

We’ve been deluged with emails responding to our May 16 story, and printed many in our letters section. I’d like to distill the essence of what I have heard from both sides, because this appears to be another case where proponents of a bad environmental plan are not carefully listening to opponents.

While there are some who oppose cutting down any tree for any purpose, this is not the majority sentiment I have heard. Instead, people who know a lot more than I about this issue see the FEMA/UC Berkeley plan as a narrow and simplistic approach to a very complex problem.

For example, we got letters from plans supporters saying that the area will be replanted (false) or that it will automatically regenerate (even though the herbicides are designed to prevent this). Restoration of the area is not in the cards, and this is not a case where “short-term” negatives are outweighed by a far better area a decade from now.

Further, the identity of “non-native” trees and shrubs raises complex questions about the meaning of that term. Is a Monterey Pine “non-native”? Isn’t much of the beautiful Berkeley Hills comprised of plants that could be seen as “non-native” and as fire hazards?

Finally, FEMA is actually targeting over 400,000 East Bay trees. East Bay voters are said to be among the nation’s most concerned about climate change, so what about the impact of this clear-cutting on greenhouse gas emissions and the loss of carbon sequestration?

Let’s hope Congressmember Barbar Lee and other political leaders get on board to stop this destructive plan. And if you are first hearing about it now, it’s not too late to express your opposition and influence the outcome.

To stay connected, follow the Hills Conservation Network (www.hillsconservationnetwork.org). You can also sign the MoveOn petition at http://petitions.moveon.org/sign/stop-the-deforestation-3 )

We will provide any breaking news on this issue as it occurs. And special thanks to my neighbor, Matt Campbell, for originally alerting me to this issue.

Randy Shaw is the Editor of BeyondChron. He is the author of The Activist’s Handbook and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century

Clearcutting in Berkeley?

From: http://www.californiaprogressreport.com/site/fema-plans-clear-cutting-85000-berkeley-and-oakland-trees

FEMA Plans Clear-Cutting 85,000 Berkeley and Oakland Trees

By Randy Shaw
The Federal Emergency Management Agency (FEMA) is moving to chop down 22,000 trees in Berkeley's historic Strawberry and Claremont Canyons and over 60,000 more in Oakland. This destructive plan is rapidly moving forward with little publicity, and FEMA cleverly scheduled its three public meetings for mid and late May while UC Berkeley students were in finals or gone for the summer.
UC Berkeley has applied for the grant to destroy the bucolic Strawberry and Claremont Canyon areas, claiming that the trees pose a fire hazard. The school has no plans to replant, and instead will cover 20% of the area in wood chips two feet deep. And it will pour between 700 and 1400 gallons of herbicide to prevent re-sprouting, including the highly toxic herbicide, Roundup. People are mobilizing against this outrageous proposal, which UC Berkeley has done its best to keep secret.
Strawberry Canyon. Photo credit: Corin Royal DrummondWhen I heard this week that the federal government would be funding the clear-cutting of 85,000 beautiful Berkeley and Oakland trees, including 22,000 in historic Strawberry and Claremont Canyon, my initial reaction was disbelief. I then wondered how the feds have money for this destructive project while Head Start and public housing programs are being cut due to the sequester.
The trees in Strawberry and Claremont Canyon have been there for decades and hardly constitute a "hazard." But pouring 1400 gallons of herbicide on the currently pristine hills will create a real hazard, and UC Berkeley even plans to use the highly toxic herbicide "Roundup" to squelch the return of non-native vegetation.
This is a true horror story that will happen absent public opposition. I know that many will find it hard to believe that this could occur in the pro-environment San Francisco Bay Area, but UC Berkeley may be counting on this attitude to get all the approvals they need before people find out the truth.
Please read "Death of a Million Trees," which provides all of the facts, figures and background about the Strawberry and Claremont Canyon proposed clear cutting as well as the tree destruction plans for the East Bay. The last public hearing will be held Saturday, May 18, 2013, 10 AM - 12 PM, at Claremont Middle School, 5750 College Avenue in Oakland.
The public has until June 17 to submit written comments on the project. You can do so through the East Bay Hills hazardous fire risk reduction project website, or via email.
There are countless destructive attacks on the environment that Bay Area activists cannot impact. But this is occurring in our own backyard, and activists must make sure that this cannot happen here.

---

Randy Shaw is a Bay Area attorney, author and activist, and the editor of the Beyond Chron online journal, where this article was originally published.

Tree Roots Cracking Sewer Lateral?

This story from today's Marin IJ about the town where I live. My husband, urban forester Ray Moritz is quoted.  Will watch this case:

Town of Fairfax sued for planting tree; property owner says roots caused sewage spill

By Richard Halstead
Marin Independent Journal

Posted:   05/13/2013 04:48:47 PM PDT

Planting a tree is good for the Earth; but it may not have turned out so well for the owner of a building in downtown Fairfax.

Russell Marne, a San Rafael lawyer representing the trust that owns the building at 1820 Sir Francis Drake Blvd., has sued the town of Fairfax, asserting that a town-planted tree caused a sewage spill on his client's property.

"The tree was planted right on top of the sewer lateral," Marne said. "So the tree grew down and smashed the sewer line. There was an over 200-gallon sewage spill on the downtown sidewalk."

The spill occurred in February in front of the building that houses the MINE Gallery on the ground floor and a three-bedroom apartment on the second floor. Some of the gallery's artwork was soiled, Marne said.

Ross Valley Sanitary District cleaned up the sewage. Randell Ishii, the district's engineer, confirmed that about 200 gallons was spilled; but Ishii said the district's report on the spill lacked the detail necessary for him to say what caused it.

Fairfax Town Manager Garrett Toy declined comment. "The town's policy is to not discuss any pending claims or litigation," Toy said.

Marne said that when the trust purchased the building it had been vacant for about a dozen years and was dilapidated. The trust restored the building, attempting to retain its historic character, he said.

He said the town of Fairfax had previously agreed to split the cost of repairing the sidewalk in front of the building; the sidewalk had been pushed up by the tree's roots.

 

"We wanted to make sure that tree comes out because it is the reason the sidewalk is busted up," Marne said. "It's a trip hazard."

Ed De Maestri, owner of De Maestri's Fairfax Garage and Auto Body, said he watched the town plant that tree and others along Sir Francis Drake Boulevard in downtown Fairfax during the late 1970s. De Maestri said the trees were planted despite his objection.

"I don't like trees downtown; it's just my personal feeling," De Maestri said. "Because they block all the views of the downtown buildings."

Marne said the sidewalk has been pushed up all along Sir Francis Drake Boulevard in downtown Fairfax due to the trees.

Fairfax, like many municipalities throughout the state, has specified in its town code that property owners are responsible for maintaining sidewalks adjacent to their property and bear the liability if anyone is injured by a damaged sidewalk.

Fairfax's town code, however, also states that "requirements of this section shall not apply with respect to any sidewalks damaged by any trees, shrubs, hedges and other landscaping installed and maintained by the town of Fairfax."

Marne said Fairfax planted the wrong kind of tree and neglected to install a cage around the tree's roots to control their growth.

Not all of the evidence falls on Marne's side of the ledger.

Ray Moritz, an arborist who operates Urban Forestry Associates in San Rafael, said, "For a tree to invade a sewer lateral, the sewer lateral has to be defective to start with. There has to be a crack, some way for the roots to get in there."

In addition, Moritz said the tree planted in front of the building at 1820 Sir Francis Drake Blvd. is a London plane tree, a hybrid of American sycamore, "which is very commonly used as a street tree because it has less invasive roots. It's a highly recommended street tree."