Monday, August 12, 2013

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. 

Friday, August 09, 2013

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.

Thursday, August 01, 2013

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.


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.