Land Use News

New Tool in Fighting Foreclosure Fraud and the Banks that Commit it

2012-01-10T08:26:00.000-08:00

Story about what one courageous Registrar of Deeds is doing to fight back on behalf of the people, from FireDogLake:

Register of Deeds John O’Brien Releases Forensic Study, Finds Mass Fraud in Foreclosure Docs
By: David Dayen Thursday June 30, 2011 2:58 pm	Tweet43

Longtime readers know I’ve been covering the registers of deeds, county officials who wield some degree of power in the case of foreclosure fraud, because they hold in their offices a good deal of physical evidence about mortgage assignments and associated documents. Jeff Thigpen, the register of deeds for Guilford County, North Carolina, did a preliminary investigation of a set of documents in his office and found widespread fraud, particularly from forged documents. Thigpen’s key partner, John O’Brien, a register in Southern Essex County, Massachusetts, has been fighting this fight as well. He vowed not to record any documents he suspected of fraud, which would slow some foreclosures. He demanded that MERS pay millions of dollars in back recording fees which were not paid when banks tracked their own mortgage transfers on a database. But O’Brien hadn’t done the work of auditing his office. Until this week, at a convention for county registers.

At the Annual Conference of The International Association of Clerks, Recorders, Election Officials and Treasurers (IACREOT), Register John O’Brien revealed the results of an independent audit of his registry. The audit, which is released as a legal affidavit was performed by McDonnell Property Analytics, examined assignments of mortgage recorded in the Essex Southern District Registry of Deeds issued to and from JPMorgan Chase Bank, Wells Fargo Bank, and Bank of America during 2010. In total, 565 assignments related to 473 unique mortgages were analyzed.
McDonnell’s Report includes the following key findings:
• Only 16% of assignments of mortgage are valid
• 75% of assignments of mortgage are invalid.
• 9% of assignments of mortgage are questionable
• 27% of the invalid assignments are fraudulent, 35% are “robo-signed” and 10% violate the Massachusetts Mortgage Fraud Statute.
• The identity of financial institutions that are current owners of the mortgages could only be determined for 287 out of 473 (60%)
• There are 683 missing assignments for the 287 traced mortgages, representing approximately $180,000 in lost recording fees per 1,000 mortgages whose current ownership can be traced.
McDonnell told O’Brien… “What this means is that the degradation in standards of commerce by which the banks originated, sold and securitized these mortgages are so fatally flawed that the institutions, including many pension funds, that purchased these mortgages don’t actually own them because the assignments of mortgage were never prepared, executed and delivered to them in the normal course of business at the time of the transaction. In a blatant attempt to engineer a ‘fix’ to the problem, the banks set up in-house document execution teams, or outsourced the preparation of their assignments to third parties who manufactured them out of thin air without researching who really owns the mortgage.”

This is why, and I’ll get into this in a future post, the Bank of America settlement with investors, which appears to indemnify the bank and facilitate a conspiracy of silence between banks and investors on these securitization issues, is a really raw deal. It “solves” one problem, BofA’s exposure to the investors in its mortgage backed securities. But it in no way solves the much larger problem, namely who actually owns these mortgages. An independent auditor, after looking at the evidence, could not figure it out.
Predictably, after O’Brien vowed not to record fraudulent documents, the banks started getting back replacement documents, including five from Bank of America, all with brand-new signatures and officers and notaries. They just whitewashed and redid the documents. ” These Lenders chose not to sign my affidavit, but rather to submit completely new documents,” O’Brien said. “I believe the Bank’s actions speak louder than words and show their consciousness of guilt.”
O’Brien is engaged in some real activism. He told every homeowner in his district to check the records at his website and see if their home mortgage documentation has been robo-signed. He’s facilitating consumer protection complaints through the Massachusetts AG. He has provided letters that homeowners can print out and send to their servicers, demanding their full chain of title pursuant to federal law. This is his perspective:

O’Brien asked McDonnell what this means for his constituents. “It is vitally important for your constituents to know that if they are in foreclosure now or if their homes have been foreclosed upon, they can stop the foreclosure from proceeding, or institute a court action to vacate a completed foreclosure. The Massachusetts Supreme Judicial Court has established the law of the land in its decisions U.S. Bank, N.A. v. Ibanez and Wells Fargo Bank, N.A. v. LaRace and I can tell you that every single assignment of mortgage that was recorded for the purpose of foreclosing the homeowner is invalid, overtly fraudulent, or criminally fraudulent. My findings also show that your constituents who are not in foreclosure, and have never been delinquent in their payments also have clouds on title due to the recording of defective and invalid discharges and assignments of mortgage.”
“My registry is a crime scene as evidenced by this forensic examination,” stated John O’Brien. “This crime that has affected thousands of homeowners in Essex County who, through no fault of their own, have had their property rights trampled on and their chain of title compromised. This evidence has made it clear to me that the only way we can ever determine the total economic loss and the amount damage done to the taxpayers is by conducting a full forensic audit of all registry of deeds in Massachusetts. I suspect that at the end of the day we are going to find that the taxpayers have been bilked in this state alone of over 400 million dollars not including the accrued interest plus costs and penalties. The Audit makes the finding that this was not only a MERS problem, but a scheme also perpetuated by MERS shareholder banks such Bank of America, Wells Fargo, JP Morgan and others. I am stunned and appalled by the fact that America’s biggest banks have played fast and loose with people’s biggest asset – their homes. This is disgusting, and this is criminal,” said O’Brien.

We literally have two registers of deeds doing the work that the federal government and state regulators should have engaged in for the last decade.

New Oped on CEQA Challenge to Albert Park Pro Ball giveaway

2011-12-06T09:04:00.000-08:00

Marin Voice: Albert Park lawsuit about more than baseball in San Rafael

By Dotty LeMieux

Guest op-ed column

Posted: 12/06/2011 05:00:00 AM PST

THE IJ's Nov. 28 editorial gives the false impression that neighbors and community members are only thinking of themselves in filing a legal challenge to the planned changes in use at San Rafael's Albert Park.

Crying foul over reasonable demands that the city and the project proponents play by the rules does little to advance understanding of the historical or current use of the ball field or the laws governing environmental review for projects such as this one.

Here are some facts to set the record straight about the reason the community group the Albert Park Neighborhood Alliance, seeking compliance with the California Environmental Quality Act, has filed its lawsuit against the city of San Rafael and Centerfield Partners:

• Contrary to the claims that neighbors don't want to see baseball at Albert Park, the neighbors have peacefully coexisted with baseball nearly every day and evening of the week since Jacob Albert donated the land for public use in 1937.

• Baseball is played there regularly now, only recreational, not commercial ball. The differences are major league. Recreational ball is just that — local youth, amateur adult and semi-pro teams use the field for fun, not for profit. Many of these teams are slated to be displaced by the new use. According to the agreement between the city and Centerfield, semi-pro and collegiate teams may use the field no more than six nightsa season, altogether, without permission from the minor-league team's owners.

This is a major change in use that is bound to have impact. No other use generates anywhere near the traffic contemplated by Centerfield.

• Even the popular collegiate team the San Francisco Seals averaged only 300 fans during its run from the mid-1990s through 2002. Most teams now using the field not only have far fewer spectators, they seldom use amplification or sell concessions.

• Every other use of the land left by Jacob Albert is either city-managed or run by a nonprofit entity for the public's use and benefit — including the day care center, bocce ball courts, tennis courts and community center.

The deed of the land was explicitly for public recreational use, with commercial uses allowed for not more than one week at a time.

• The city's own attorney has already conceded that this use is a "project" under CEQA. And as recently as Aug. 9, Centerfield Partners had agreed to do the necessary environmental studies. It pulled its promise in favor of a "downsized project." This does not change the need for environmental review.

• Even though it has been "downsized," there is no way a commercial venture that has to hire players, purchase equipment, attract investors and promote a fan base will be satisfied with a single-year lease. The Albert Park Neighborhood Alliance feels that such investments can only lead to more leases, more changes in the park's configuration and increased impacts, all without environmental review — amounting to "piecemealing" a larger project, in violation of California's environmental laws.

• The agreement signed by the city allows changes in practically every aspect of the lease, at the whim of the parties, without community input or review.

The Albert Park Neighborhood Alliance is merely asking that they follow the same rules any other project with potential environmental impact has to follow.

The question this paper should be asking is, "What is Centerfield afraid a proper environmental review will show?"

Dotty LeMieux is a San Rafael lawyer and representative for the Albert Park Neighborhood Alliance.

Housing for People not for Profit

2011-12-01T08:51:00.000-08:00

When a group of us started the Co-operative natural food store in a Never to be Named Coastal Town in 1976, our motto was "Food for People, not for Profit." That is still the motto, these 35 years later.

A Workers' collective runs the store, with minor adjustments over the years to allow for some division of labor, in ordering food, accounting, overseeing work done, and so forth. But the basic premise holds true.

A small enterprise admittedly, but one whose principles can apply to other social movements. We all need to eat. Why should some get rich off the needs of otherwise? There is a large movement in this country for Single Payer Health care. Or what many are calling Medicare for all. The premise is simple, pool our resources, get rid of the middleman in the form of profit-happy insurance companies, and provide decent affordable health care for all.

Another basic need is for shelter. While there are non-profit housing groups, land trusts, co-housing ventures and the like, the profit motive is still big in the housing market, and it still drives housing speculation, while driving honest hard working people out into the street, because they can't afford their mortgage payments to the rapacious banks who suckered them into buying a home on nothing down and a big balloon payment in the not so distant future.

Why should banks, speculators, and developers profit on the need for shelter? why not take the profit motive out of home sales. More co-housing, land and housing trusts, sweat equity and local governmental regulation of the construction industry is a good start.

A fair wage for builders, architects, planners and others necessary to see that houses are built well to serve the needs of the people.

All the people.

We will never have a truly equitable society so long as the few control the land and the land prices, so long as banks can bundle mortgages and land speculators can turn a profit from overbuilding in sensitive areas, because to build just what's needed would not be profitable.

Just today in the Marin IJ, a poor beleaguered developer is crying foul because the Planning Commission has rejected his bid to build 12 luxury homes in a area zoned for 5. He'll probably get 7 or 8 because otherwise would be to deny him profitable use of his land.

He would cry foul and sue the County. That's what they do.

And yet, no one wants to touch this sacred cow of property rights. Even so called liberals draw the line at anything that might impinge on their ability to turn a profit on land sales. Yes, many of us have the equity in our home as our only asset. Selling the family manse to take care of needs later in life like medical bills, colelge tuition and a well deserved retirement is a time honored tradition.

But what if medical needs were taken care of, tuition was free and decent wages were guaranteed for all? What if there were more cooperative or collectively run businesses, so that over priced everything was no longer the norm?

Then maybe overpriced mortgages would go the way of child labor and sweat shops (oh, yeah, we still have those too).

What if shared resources were the norm, not an aberration indulged in by Utopian fantasists and old hippies?

Ask yourself the question, what has trickle down capitalism done for me lately?

Keep capitalism, but make it trickle up; let the many, the 99% decide who runs the banks, (or the credit unions), the businesses and the housing market.
Homes for People, not for Profit. Think about it. Good issue for Occupy?

Would Albert Park be a field of dreams—or a field of screams?

2011-11-27T10:04:00.000-08:00

Pacific Sun - Friday, November 25, 2011

More on Minor League Baseball plans for San Rafael's Albert Park

Feature: Aaay, batta-batta!

by Peter Seidman

No other endeavor epitomizes the vision of small-town America, romantic past and present reality, than minor league baseball. Hollywood types knew that when they made Bull Durham.

Although that movie looked into the lives and loves of players on their way up and down the baseball ladder, it didn't reveal the real world of minor league baseball, a world that came to San Rafael this year. A proposal to bring minor league ball to Albert Park touched a nerve. Many saw the possibility as an affirmative addition to San Rafael and Marin, an embodiment of the "small-town character" so often mentioned when city governments deliberate a new proposal of almost any kind. Almost nothing can be more "small town" than a minor league baseball team, supporters contend. The proposed team, the San Rafael Pacifics, would provide a welcome addition to the family entertainment possibilities during the summer months; the team also could add revenue to city coffers. A minor league team can bring millions of dollars in ancillary revenue to a town and give a boost to local schools and charities through cross promotions. What could go wrong with a proposal like that?

But this is Marin. Neighbors in the Albert Park area say the proposed team will create unacceptable noise and traffic impacts. They hired attorney Dotty LeMieux to represent their interests. On behalf of the neighbors, LeMieux filed a lawsuit raising a California Environmental Quality Act challenge. It's a common tactic here for opponents of almost everything. The lawsuit says the city erred in its assertion that the baseball team's proposal needs no environmental review under CEQUA. [sic]

"We're not against baseball," LeMieux says. "We just want them to play by the rules." She says an intrinsic part of a minor league team is the focus on family entertainment, which gives parents a chance to pass on values, set good examples—such as following the rules. "When you do a project like this, you need to have an environmental review. They were going to do that, but instead of doing a review they came back with this somewhat truncated project. But it's still a greatly increased use of the space. It still increases the number of people that can be there. They're planning to play baseball 45 days a year, which will keep some of the amateur and semi-pro people out, and there are going to be traffic issues," which have not been adequately addressed. Those issues should be looked at to determine whether a full environmental review is appropriate for the baseball proposal. It's not exactly evocative of the romantic crack-of-the bat vision.

Lost in much of the debate is exactly who wants to come to town. The team would be the start of a new stable of minor league ball teams in the Bay Area. It's a tough proposition; teams have tried to make the North Bay home before, but they haven't lasted.

Mike Shapiro is president and general manager of Centerfield Partners, an LLC corporation that bought the rights to run minor league teams in the Bay Area. Brian Clark, known in the aviation industry for playing a key role in bringing Virgin America to, well, America, started Centerfield. "His avocation is baseball," says Shapiro of Clark. "He had this vision and dream that he could form a company that could own and operate multiple minor league teams in the Bay Area." Clark retained Shapiro to put together a business plan and scout locations for the teams. "The first place I took him to was Albert Park because I had played there as a semi-pro player, and my sons currently play there as high school players."

Shapiro played centerfield at Albert Park from 1974 all the way to 1993 on a variety of semi-pro teams. "I played on so many, it's hard to remember now," says the Corte Madera resident. His history at the ballpark raises one of the issues on which Centerfield and the city rested their contention that the proposal should be categorically exempt from needing a full environmental review. "The truth of the matter is that since [Albert Park] was built in the 1950s, it has hosted a wide range of activities, even some professional exhibition games. There also were collegiate, high school and Little League activities, all levels of play."

• • • •

LEMIEUX AND THE neighbors who object don't buy the contention that because Albert Park has been the site of past baseball activity, the city should open its arms to professional minor league play without an environmental review. The city has failed to assess the difference between the current usage and what will happen when minor league guys step up to the plate. "Even today with the teams that are there, balls hit the walls of nearby apartments." Players for the Pacifics, says LeMieux, "will be professional players. They are heavy hitters." That needs to be reviewed.

When Centerfield first approached the city in April about plans to bring minor league ball to Albert Park, the company proposed adding 800 temporary seats to a 700-seat grandstand. Centerfield also said it would upgrade bathrooms, install netting behind home plate and add other improvements. But neighbors soon voiced their objections. Centerfield responded by reducing the scope of its proposal. The new plan calls for adding just 100 seats and providing free parking. Neighbors said that without free parking, those attending games wouldn't use designated parking and would clog neighborhood streets. Centerfield agreed to the no-fee parking plan.

In addition, a committee will review activity during the season and act as a liaison between the neighborhood, the team and the city. That came about during discussions with the city, Centerfield and the neighbors, says Shapiro. "They said they needed a venue to focus and direct their comments and concerns, and they wanted responsiveness. I said we would do that as a matter of course." Centerfield also agreed to put aside its desire for a three-year lease and sign a one-year agreement with the city. At the end of the first year, Centerfield can go back to the city for an extension, which Shapiro is confident Centerfield will be able to secure after a season goes by with few problems.

San Rafael City Councilman Damon Connolly and Mayor Al Boro served on a subcommittee that went out to the community prior to the city council voting on the team's proposal. The council voted twice, both times giving Centerfield a unanimous nod to round third and head home. "It's fair to say that the process got off to a rocky start," says Connolly. "Neighbors expressed concerns that they weren't being heard. In response to that, we made a point to meet with the neighbors. By the end of the process, I was satisfied that this will be a good opportunity for the city, and I've heard a lot of positive feedback from the community on the vote. I hope [the team] will be a boost to local business and provide a source of family entertainment." Connolly says the city decided the proposal could be exempt from an initial environmental review because of the process the city undertook to get community input, which led to the scaled-down proposal and the concessions to which Centerfield agreed.

City Councilman Greg Brockbank came up short in his bid for the mayor's chair in the recent election; he's leaving the council and has no ax to grind. He says the neighbors "are overly concerned" about the impacts from the Pacifics playing at Albert Park. "There won't be any night use. There might be slightly larger crowds, and maybe their PA system will be used a little more often than it is now," but the impacts "won't be unduly burdensome."

Brockbank acknowledges the neighbors' concerns over the increased commotion and clamor that will occur, but he points out that the neighborhood already has noise and impacts from the local farmers' market and the current activities at the park. "Some people think they ought to have the right to have their windows open on a summer night and not have to hear baseball noise." But the crack of the bat already sounds in the park, proponents reiterate. It's also true, as LeMieux points out, that the players cracking the bats now aren't heavy-hitter pros. Still, when a prospective homeowner buys property next to an airport—or a baseball field—it's reasonable to assume that some noise will emanate from what should be an expected use.

Centerfield is proceeding with plans to start its 45-game season for the Pacifics in May, barring legal delays. The Pacifics will be part of the North American Baseball League, which includes teams in California, Hawaii, Texas and Canada. Commissioner Kevin Outcalt says a team in Nevada may be a new addition. "We're still working on a few team inclusions. We have our league winter meeting the first week of December, and we'll come up with our draft schedule then."

• • • •

THE NORTH AMERICAN Baseball League is independent, which means it's not affiliated with major league teams. It's been in existence for eight years, according to Outcalt. For six of those years, it was known as the Golden Gate Baseball League, with teams mostly on the West Coast. Last year, the league expanded and rebranded itself as the North American League.

The minor league system in baseball includes a "farm system" of teams, each affiliated with a major league team. In the farm system, AAA teams are closest to the majors; AA is one notch down; and A teams are for newcomers to professional ball. The goal is to produce players for the affiliated major league teams. Winning games is less important than working with players to make them credible major league prospects. Independent minor league teams, like the Pacifics, play to win, although players on independent teams unaffiliated with major league teams can and do advance to the majors.

"Most of the North American League players will be players that played in major league organizations and were released," says Outcalt. "About half the team will have AA or AAA experience. The other half will be A players or a few college guys. It's tough to make a team in our league if you have no professional experience because the level of play is very high."

The history of minor league ball in the North Bay shows how tough it is to bring a team to the area and survive. The Sonoma County Crushers called Rohnert Park Stadium home until financial reality ended the dream about 10 years ago. A plan to bring an affiliated minor league team to Windsor met with opposition from the San Francisco Giants, which controls the North Bay territory for affiliated minor league teams.

Shapiro, who says he has two physical handicaps—he's short and a lefty—wound up in baseball management. He worked with the Giants and the Braves and was senior vice president of the Washington Nationals before returning to Marin to join Centerfield Partners.

"This offers me an opportunity to take all I learned in the majors and bring it down to the community level. I can't imagine having any more fun. I just turned 60 this year, but I'm way more immature than that."

Walmart circumvents Environmental Laws.

2011-11-26T08:40:00.000-08:00

Well, they're at it again. Walmart is sneaking around circumventing California's environmental laws. surprise surprise. Don't fall for this tactic folks.

Walmart wins big with California initiatives

Will Evans, California Watch

Thursday, November 24, 2011

In a push to expand across California without interference, Walmart is increasingly taking advantage of the state's initiative system to threaten elected officials with costly special elections and to avoid environmental lawsuits.
The Arkansas-based retailer has hired paid signature gatherers to circulate petitions to build new superstores or repeal local restrictions on big-box stores. Once 15 percent of eligible voters sign the petitions, state election law puts cash-strapped cities in a bind: City councils must either approve the Walmart-drafted measure without changes or put it to a special election.
As local officials grapple with whether to spend tens of thousands or even millions of taxpayer dollars on such an election, Walmart urges cities to approve the petition outright rather than send it to voters.
While most development projects don't attract much controversy, Walmart has become controversial across California. Backers of organized labor have demonized the company for opposing unions and paying low wages, while other critics say its superstores cripple local businesses and increase sprawl.
Walmart's use of the initiative process has angered elected officials who say the company's political strategy effectively holds them hostage.
"They circumvented the system and blackmailed the town," said Rick Roelle, a councilman in Apple Valley (San Bernardino County), where Walmart pushed through a superstore proposal in April. "We've had controversial projects, but we were never bullied like Walmart."
Walmart and its supporters argue that the strategy helps speed up development that can boost employment and tax revenue as well as low-price shopping. The initiative process, according to the company, pressures cities only because it shows the strong community support for Walmart.
"The initiative process was an opportunity that allowed voters to voice their support for the benefits that Walmart would bring their community, including jobs, affordable groceries, increased tax revenue, and infrastructure improvements," Walmart spokeswoman Delia Garcia said in a statement.
The company has employed the same well-honed strategy across the state, from the Central Valley agricultural community of Kerman (Fresno County) to the Silicon Valley suburb of Milpitas to Apple Valley, where the main street has a special crosswalk button for horse riders.

Ramping up

Walmart has ramped up the campaign in the last year, pushing through four new superstore projects and fighting big-box regulations in San Diego. The company spent $2 million on the effort, paying election lawyers, campaign consultants and public relations firms.
Walmart often rallies a crowd of supporters at city council meetings to back up its position. Pastor Ray Smith, president of a group called Pastors on Point, asked his followers to support Walmart in San Diego. He spoke passionately against an ordinance imposing new regulations on superstores, saying other stores don't hire enough African Americans.
At one city meeting, he called on a group of young people to stand and told the City Council, "You want to stop the violence? We need jobs."
Walmart paid Smith's church to bus supporters to council meetings and shuttle young people who gathered signatures for a ballot initiative petition against the regulations. Walmart's local political committee also reported paying $13,400 in salary and consultant payments to Smith directly, in addition to $5,500 labeled "van/bus rental."
Smith said the campaign filings were incorrect. "They did rent our buses ... but I was never a consultant for them," he said.
Walmart uses the ballot initiative process in part to shield its superstores from lawsuits under the California Environmental Quality Act. The landmark 1970 law requires state and local agencies to review and mitigate the environmental and traffic impacts of development projects. Lawyers often sue Walmart, contending that the review didn't go far enough.
The company has found a loophole: Once it switches to a ballot initiative, the law doesn't apply.
Other companies occasionally pursue ballot initiatives on development projects. But Walmart is the main player, and California is the main battleground.
Walmart's successful strategy raises questions about whether California's communities - dogged by economic woes - can afford an aggressive use of the state's system of direct democracy. Other interest groups could use the same strategy to pressure elected officials, as medical marijuana advocates recently did to defeat pot-club regulations in San Diego.
This year, four cities approved Walmart's initiative petition without an election. One of them, San Diego, repealed its own superstore regulations in the face of an election that could have cost $3.4 million. Only Menifee in Riverside County held a special election, costing taxpayers $79,000. Walmart spent nearly $400,000 there - and won handily.

Opponents' stance

The strategy violates the spirit, if not the letter, of state environmental law, said Richard Frank, former California chief deputy attorney general for legal affairs.
"It is disturbing because it appears to be a fairly overt circumvention of the CEQA process," said Frank, now director of the California Environmental Law & Policy Center at the UC Davis School of Law.
Walmart argues that it closely adheres to California's extensive regulations. The strategy is necessary, it says, to avoid spurious lawsuits targeting the company for political reasons. The retailer points out that it goes much of the way through a lengthy planning process, allowing for an environmental impact report and public input, before heading to the ballot box.
"In many places around the state," Garcia said, "we often obtain store approvals but are subjected to special interests that attempt to use political and legal challenges to unfairly delay a store's construction."
Since the 1990s, activists also have used ballot initiatives to block Walmart stores.
Walmart turned that strategy on its head when it began proposing its own initiatives. The company suffered a sobering, nationally publicized loss in Inglewood in 2004. The company spent more than $1 million on a ballot measure to open a superstore there. Unions fought back, and voters shot it down.
But Walmart hasn't lost in California since.
In 2007, Walmart used the initiative process to force Long Beach to repeal an ordinance banning certain superstores that sell groceries. The council, facing tough budgetary times, decided the city couldn't afford an election, giving in to the company. In 2009, Walmart defeated a big-box ban in Salinas the same way.
Last year, city councils approved Walmart superstore initiatives without an election in the small Gold Country city of Sonora and the Mojave Desert military base community of Ridgecrest. This year, with five victories, has been Walmart's busiest.
Walmart continues to see a big opportunity for growth in California. The company already has 212 stores and employs 67,525 people in the state.
Sometimes, council members ask Walmart to pay for the election. This year in Pittsburg, for example, another developer offered to pay for the election costs of its ballot initiative. But Walmart always declines.
"We are not embarrassed by our decision to move to an initiative and to allow the electorate to overwhelmingly weigh in, but we are not prepared to cover any costs for an election," Walmart spokesman Aaron Rios said at an Apple Valley Town Council meeting in April.

California Watch, the state's largest investigative reporting team, is part of the independent, nonprofit Center for Investigative Reporting. For more, visit www.californiawatch.org.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/24/BA0O1M3DNR.DTL

This article appeared on page C - 2 of the San Francisco Chronicle

Back in the News!

2011-11-08T11:04:00.000-08:00

Neighbor group charges mound in San Rafael baseball dustup

by Jason Walsh

Humm baby? More like legal matter, baby.

Marin baseball fans shouldn't start planning their summers around the San Rafael Pacifics' home games just yet--the neighborhood group that's been jeering the idea of peanuts, popcorn and Crackerjacks at nearby Albert Park have informed the San Rafael City Council they intend to force an environmental review through the courts.

Centerfield Partners, the group that's trying to bring pro ball to the Gerstle Park-area ballfield, had initially offered to pay for an independent environmental review of their proposal, but after considering costs--and the possibility that it would delay their opening day to the 2013 season--Centerfield scaled back their proposal and put it before the Council without an EIR.

While the original proposal called for a three-year lease and Centerfield's promise to modernize the 60-year-old field, spruce up the bathrooms and add seating for about 800 fans--the revised plan now seeks a single-year lease with only 100 added seats and minor changes such as netting behind home plate and fencing behind the dugouts and limiting the noise after 9pm. Additionally, the team's first year will be overseen by a seven-person citizens advisory committee--made up of neighbors, a business, a P&R commissioner and Centerfield representatives--which would review its findings after the season.

The Council on Oct. 3 approved the proposal unanimously.

But on Nov. 4, attorney Dotty LeMieux, on behalf of the Albert Park Neighborhood Alliance, said via a letter to the council that the group plans to convince the courts that the city "abused its discretion" in exempting the project from environmental review.

Looks like this game may be decided by the umps in the Marin Count Superior Court.

Still, Centerfield is taking an "on with the show" attitude; on Nov. 2 the group unveiled the name of the team--but the fate of the San Rafael Pacifics will likely be decided in extra innings.

Stay tuned for more news as we go forward.

Cell Phone Towers Popping up in Lucas Valley

2011-10-19T12:49:00.000-07:00

Lucas Valley residents fight plan to install wireless poles

By Jessica Bernstein-Wax
Marin Independent Journal

Posted: 10/18/2011 04:27:42 PM PDT

Click photo to enlarge

A utility pole in Lower Lucas Valley, with equipment instsalled by ExteNet Systems

Residents who live in a peaceful section of Lucas Valley with no street lamps or above-ground utilities are fighting a proposal to erect three poles for wireless equipment in their neighborhood.

ExteNet Systems Inc., an Illinois-based telecommunications company, has submitted applications to San Rafael, Marin County and Novato to install a 16-node network to improve cellphone service in the Lucas Valley Road area, said Patti Ringo, the company's director of municipal relations for the West.

"We do not transport signal — we only build infrastructure," Ringo said. "Each individual location is multi-carrier capable, meaning I have the capacity to put more than one carrier at each location."

ExteNet has already installed equipment at five sites in unincorporated Marin County. The company normally affixes its equipment to existing poles, but must construct approximately 30-foot poles at two proposed sites on Idylberry Road and another on Creekside Drive, Ringo said.

That's because the Eichler community in that neighborhood has no poles or above-ground utilities — a look many residents say they want to preserve.

"The master plan for the community that I live in is that there be an undisturbed view of the hills," said Eric Forbes, who lives on Mount Whitney Court and has been researching the proposal with a subcommittee of the Lucas Valley Homeowners Association.

Forbes, along with about a dozen other residents, has

gathered about 330 signatures opposing ExteNet's plan in the community of 538 homes.

Residents say Sprint coverage is good in the area, but many other carriers don't have a strong signal, leading some homeowners to install "microcell" network extenders at their houses.

ExteNet is installing its network for T-Mobile, but is in talks with two other major carriers, Ringo said.

Bill Hansell, a Marinwood Community Services District board member, said he's interested in learning more about any proposal that would boost wireless service in the area.

"There are a lot of people who I've heard who want to get better coverage," Hansell said. "I don't think people really have much of a choice in terms of providers, because Sprint's the only thing that really works."

Forbes said he and others would welcome better cellphone coverage in the area but don't want to sacrifice their neighborhood's character or appearance to get it.

"There are no two-story houses back against the open space," Forbes said. "It's a really amazing place. It looks like you're camping almost when you look outside, especially at night. There are no lights."

Lindsay Beaman, a resident who lives near both proposed sites on Idylberry, agreed, saying, "We have no wires, no poles, no streetlights and people want it that way.

"It's on the books with the county and the county has enforced this," he said.

ExteNet filed an application with Marin County earlier this year, which is currently incomplete as officials await the company's response to various questions, Supervisor Susan Adams said.

Residents were angry to learn that ExteNet also filed an application with the California Public Utilities Commission on Oct. 5 to proceed with the project, Beaman and Forbes said. About 80 people from Lucas Valley and North San Rafael packed a meeting with ExteNet last week to learn more about the project and voice their concerns.

"It appears that the ExteNet company is trying to do an end run on our local planning process," Adams said. "By going to the (California Public Utilities Commission) and asking them to make the determination, it further removes our local government."

Adams said she expects the Board of Supervisors to get involved in the utilities commission process and push for local jurisdiction. She added that ExteNet should be considering alternatives to the poles.

"There's lots of creative opportunities," Adams said. "They can find a homeowner that might be willing to allow their home to be used or a tree-top device. ... There's different ways to do it besides installing a pole."

Ringo said ExteNet has been simultaneously getting approval through the utilities commission for projects and obtaining permits from local agencies.

She emphasized that the company will get permits from local officials before it begins building.

ExteNet is also considering moving the poles a couple of hundred feet from the current proposed sites and possibly putting some equipment under shrubbery, Ringo said. The company put a temporary hold on its Lucas Valley application with the utilities commission Tuesday so it can research those possible changes.

However, "we can't put antennas underground," she said.

We are in the News

2011-10-04T15:08:00.000-07:00

San Rafael neighbors continue to debate the merits of minor league baseball in their town. from the North Bay Biz, October, 2011, Bill Meagher

It’s midsummer, and a bright sun beats down on Albert Field in San Rafael, doing its best to bake the infield rock hard and fade the grass from green to brown. The stands are quiet, the dugouts filled with plenty of nothing. This baseball park, which dates back to the 1950s, is old in a charming way—like a favorite aunt who’s arrived at that age where her face speaks gently of character, and the twinkle in her eyes peeks out from beneath a feather of salt and pepper hair.

Centerfield Partners (CP) wants to fill the stands here next season with families and baseball fans, and the dugouts with minor league players hoping to punch their ticket to the big leagues.

The company, led by CEO Brian Clark, Corte Madera resident Michael Shapiro and Petaluma’s Brian Sobel, hopes to have a yet-unnamed entrant to the new North American League (NAL) playing at Albert Field for 45 games next season. The NAL is an independent league, which means none of the teams are associated or under contracts to major league teams. (For instance, the San Francisco Giants have a rookie team in Oregon, a Class A team in San Jose, a double A squad in Connecticut and its top farm club in Fresno.) Instead, the teams in this league would hail from a dozen different locations as far flung as Edmonton, Alberta Canada; Wailuku, Hawaii; Edinburg, Texas; and Chico, Calif.

For years, the city of San Rafael has tried to bring activity and energy to its downtown after 5 p.m. with its “Live after Five” program. So bringing a minor league team to Albert Field, just a block off Second Avenue, would seem to be a home run.

Not so fast.

Early innings

Before a public hearing regarding the team in mid-July, a TV truck from KTVU (Oakland Channel 2) is parked outside San Rafael City Hall. The cameraman is filming a group of kids dressed as a hot dog, bags of popcorn and peanuts as well as Cracker Jacks. The kids are either very gifted costume creators, or mom and dad are minor league baseball fans.

Not everyone is a fan, however, not by a long shot. Lawyers Nick Rossi and Dotty LeMieux have been hired by different groups of Gerstle Park (where the ball field is located) residents who’d like to keep the pros off the field. The neighbors are concerned with traffic, noise, alcohol abuse and parking woes.

Well…in the best tradition of Marin County, it’s a little more than that. After a public hearing that ran more than four hours and included 45 different citizens speaking both for and against the idea of baseball at Albert Field, I can tell you first-hand that some neighbors are concerned with their home values being dragged down by minor league baseball. There are also folks worried about their health—so much so that one well-meaning local offered to bring the mayor a note from her doctor regarding the ill effects of noise on the human body—or concerned that their tree-lined streets might become home to post-game violence or car vandalism. There are also neighbors who fear people using their front yards as restrooms.

Just as there are two teams in every baseball game, the meeting also included neighbors who support the upstart league, expressing to the patient city council their hope to be able to bring their kids to see baseball in a less pricey venue than the Giant’s yard at AT&T Park. Some supporters talked about dining downtown and walking to the park. Other speakers told the council they simply wanted to enjoy baseball in an old-fashioned setting in their own hometown.

As the clock slipped past the midnight hour, Mayor Al Boro found himself in front of a crowd so large the Fire Marshall had to hang around all night. Boro, a baseball fan who was once a batboy for the San Francisco Seals (when the Pacific Coast League team called 16th and Bryant home), knew the time had come for him to play umpire. He told the crowd that while the city staff had recommended Centerfield be allowed to use the park, the council wouldn’t take a vote on the issue. It was clear the neighbors had legitimate concerns. Instead, he said, another meeting would be scheduled. Vice mayor Greg Brockbank chimed in, imploring Centerfield Partners and the neighbors to get together to find some middle ground.

The minors

CP owns the rights to four different NAL baseball franchises in the Bay Area. This means the NAL will let CP own four independent teams—and CP hopes the San Rafael entry will become a successful setup model for the others to follow.

Since NAL teams are independent, the league has created some guidelines for its teams to survive. Team rosters are limited to 23 players, and teams have a minimum and a maximum payroll for all players; the least that can be paid is $60,000 and the most is $90,000. To put that into perspective, the major league minimum salary is $450,000, exactly 80 percent more than the NAL top rung.

On the other hand, the NAL has left room for teams that feel they want to go the route of the New York Yankees and buy themselves a title. Teams can exceed the cap by $20,000 and kick in a 25 percent luxury tax. The scale goes all the way up to $80,000 extra if the team is willing to pay 100 percent tax.

While the league lives on a shoestring, that hasn’t kept some big names from getting involved. The Lake County Fielders, the Zion, Illinois-based team, is partially owned by actor Kevin Costner. The Edmonton Capitals are owned by Daryl Katz, the same guy who owns the Edmonton Oilers of the National Hockey League. Jose Canseco, the one-time Oakland A who wrote a tell-all book on baseball and steroids, is co-managing a team in Tucson, Ariz., along with his brother, Ozzie.

Like all independent leagues, the NAL is colorful. For instance, the Fielders have bounced paychecks or not issued them at all, the play-by-play announcer quit in mid-game and a new stadium promised by the city of Zion failed to open. Almost the entire roster of players, fed up with living hand-to-mouth, either quit or were released after protesting their plight. (Lake County has gone out of its way to explain Costner isn’t involved in the day-to-day operation of the team.)

In July, the Tucson Toros ceased operations, and the Yuma Scorpions are now pinch-hitting for them while Toros ownership tries to unravel a puzzle that involves the city of Tucson, its Hi Corbet Field and various claims. One of the 2011 starting pitchers for the Chico Outlaws is Eri Yoshida, a 19-year-old woman who was born in Japan and throws a wicked knuckleball. It’s the second year in the league for the player known as the “Knuckle Princess.”

In the interest of full disclosure, I need to fess up a bit. My Dad played in the minor leagues—with Jackie Robinson in Montreal in 1946, no less. I’ve watched minor league games in Denver (before the Rockies were a glint in Major League Commissioner Faye Vincent’s eye), Reno, Chico, Stockton and Sonoma. I played in an instructional league for the Dodgers and in college. Baseball has always been a part of my life, so I bring a little understanding to this story.

Minor league baseball is about a trio of adults bending over to put their foreheads on a bat, spinning around and then trying to walk a straight line between innings. The minors are a place for 8-year-olds to get a huge thrill from getting the autograph of a guy who won’t get any closer to the big leagues than buying a ticket. And it’s the spot to see a player like Sergio Romo strike out the side on his way to the bigs.

By the way, Romo played in the NAL before ending up in the bullpen of your world champion Giants.

The deal

CP is led by Brian Clark, who made his money in the travel industry. Clark was formerly an officer with Virgin America and senior vice president at Fly.com, a travel search site. The Dublin, Calif., resident is now CEO of travel startup Vayant Travel Technologies. While Clark has no background in minor league baseball, he does have two key ingredients: cash and passion.

He’s also had the good sense to bring Corte Madera’s Mike Shapiro on board as a consultant. Shapiro has a baseball background, having served in either management or legal capacities with the San Francisco Giants, the Atlanta Braves and the Washington Nationals. He also has his own company, Redwood Sports and Entertainment Group. And Clark brought Brian Sobel in to help navigate the maze of municipal approvals in Marin. Sobel, a former member of the Petaluma City Council and a long-time political consultant, has his own business, Sobel Communications, in the city that was once the chicken capital of the world.

Clark views the San Rafael team as a good first entry into the NAL for CP. “San Rafael would be our first team, and it would have the smallest venue [1,500 seats at Albert Field] in the league. By way of comparison, the average attendance at independent baseball games last year was more than 2,800 fans,” he says. “Despite the smaller venue, we feel comfortable we can do well. But the margins in independent baseball are typically thin. We’d be pleased to have multiple teams each making ’OK’ margins, adding up to a decent return overall.”

While Albert Field, from an old-time baseball perspective, is charming, it’s also long in the tooth, and the city of San Rafael has pretty much given up on maintaining the park, choosing instead to focus on keeping the libraries open and cops on the streets. This means CP is on the hook for any needed improvements. The team will replace the backstop, paint the grandstands, refurbish the locker rooms and bring in more seating as well as temporary bathrooms and concessions. “We expect to put tens of thousands of dollars worth of improvements into Albert Field before we’ve ever made a nickel,” Clark says.

The city expects to make $4,000 to $12,000 from rental of the park to Centerfield, with much of that payment being made before the season even starts. The team plans on charging between $6 and $15 per seat. CP will take advantage of the parking lot at the adjacent office complex owned by Seagate Properties.

The brushback

Dotty LeMieux is a spirited advocate, the kind of lawyer who brings a passion along with a major league savvy to any fight. She’s long been a presence in Marin politics as a consultant, and her 13-page, anti-NAL letter to the city is a study in reasoned argument. In the first sentence, she tells the city that minor league baseball at Albert Field is, essentially, a privatization of a public facility. She says the city stands to gain little, if anything, from its association with the team, which she labels a “highly speculative business venture.”

At the July meeting, she was very much at home as she patiently ticked off her objections to minor league baseball at Albert Field in an organized fashion, attacking the city’s lack of an environmental impact report along with detailing concerns of her clients. She told the council and the standing-room-only audience that having a college or semi-pro team play at Albert is a far cry from a season of minor league ball. She called on the city to delay a decision for another night, and her presentation was greeted with cheers from opponents of the proposal.

She was followed to the podium by a parade of people wishing to weigh in on minor league ball in downtown San Rafael. Those who felt Albert Field is a bad location for a minor league team talked about a public address system blasting music and bright lights disrupting calm summer evenings. Neighbors told the council that they feared the Gerstle Park neighborhood would become inundated with fans trying to save the $5 parking fee. Still other opponents worried that beer and wine would be available at the ballpark.

In the weeks that followed the meeting, Centerfield’s Clark and company met with neighbors. “We’ve actually had several productive meetings already with neighbors and other local residents. We met with the Federation of San Rafael Neighborhoods on April 20, which was before we ever presented our plan to the Park and Rec Commission. We’ve spoken with individual neighbors on several occasions since, and we sent an open letter outlining our plan to the Gerstle Park neighborhood.

“This program of community outreach is central to our operating plan and is detailed in several places in the use agreement proposed to the city council. Baseball, at its core, is a community activity. So we plan to be out and about in the community in-season and off-season,” says Clark.

Change strikes out?

One of the basics of living in Marin County is that change is rarely a welcome event. It goes beyond simple NIMBYism (the generic not-in-my-backyard attitude that can be found in many neighborhoods across the county). Here, it’s more pronounced, with bedrock roots driven deep by the heady combination of a population that’s well-educated, well-compensated and that sometimes has some spare time to explore the complexities of how to retain the highly valued status quo against all odds.

As one neighbor told the mayor and council, she moved to the neighborhood two years ago, attracted by its numerous trees and old homes with porches. There was no hint that there would be baseball at Albert Field, she complained. This, in essence, was not what she and her family had signed up for.

It’s an open question just how much a change the team would actually be. In the past, Albert Field played host to the Seals, a team made up of college players that played a full slate of games. Beer was served at the ballpark, and the city says it didn’t receive any complaints from neighbors about the lights, noise or intoxicated patrons mistaking Buicks for bathrooms.

Rick Wells, CEO of the San Rafael Chamber of Commerce, says his organization has taken the temperature of the business community on baseball. “More than 95 percent of the businesses that responded to the survey said they think professional baseball at Albert Field would be beneficial. The support is clear,” he says. “This proposal is about strengthening our local economy—more dollars circulating in the city and bringing the community together.”

End of the game?

As this issue goes to press, a decision regarding minor league baseball at Albert Field is still up in the air. After a series of meetings with neighbors and the community, the city has proposed conducting an environmental study of how baseball will coexist with the neighborhood.

The city would pick a firm to perform the study, which originally was thought would cost $30,000 to $40,000, and take perhaps four months to complete. But after CP took a closer look at what the parameters would look like, it was clear the organization wouldn’t be able to complete the study and get work done on the ballpark in time for the 2012 season. And with Centerfield estimating the cost of the study could climb as high as $70,000, the organization is trying to figure out if it can afford to play ball in San Rafael.

With 2012 already gone and the team wondering whether it could afford to bring pro ball to San Rafael, Centerfield brought a counterproposal to the city. It would scrap its plans to double the seating at Albert, and instead make do with the 700 seats already in the house. It would make parking free to encourage everybody to stay out of the Gerstle Park neighborhood. It would address the noise concerns by limiting music between innings.

The plan essentially mirrors what’s been in place for the Novato Knicks, a semi-pro team that has played at Albert Field over the years. And it reflects the use by the aforementioned Seals. In a way, it puts the city on the spot, since CP is no longer asking for anything more than what’s been allowed in the past.

At this writing, in the dog days of August, both Centerfield and the city are in modes of consideration. City Manager Nancy Mackle had this to say: “City staff recommended approval of the Centerfield concept as we seek to partner with others to bring events and activities to our community that we could not otherwise offer on our own. As with any proposals, we attempt to assess the benefits that would come to our community but also look at the potential impacts and have plans in place to mitigate them. We will continue to look at this proposal with Centerfield over the next few weeks”

As for Centerfield? Brian Sobel, who makes a living dealing with the media, was circumspect, only saying that Centerfield doesn’t know what will happen.

Were someone to suggest a wager on whether minor league baseball is coming to Albert Field, I have a Jackson that says if you want to see pro ball, you better hop the ferry to McCovey Cove.

The final score: Neighbors 1, baseball fans 0.

Let the Sun Shine In!

2011-09-26T16:40:00.000-07:00

Having the warmth from the sun reach our property can bring us more than just a good feeling and keep our bodies warm. It can keep mold and mildew at bay and even increase our property values. And the emotional well being we derive from a summer's day has no price tag.

Many jurisdictions have sunlight ordinances. No, I mean real sunlight, the kind that comes from above. (Many also have "sunshine" ordinances, which are supposed to provide an open and transparent governance process, but that is a "whole 'nother story.") If your City has a tree and/or view ordinance, it may have a sunlight or solar access ordinance too. This means if you can document the existence of a view or sunlight that pre-existed your purchase of the property, you may be able to have trees blocking such a view or solar access thinned, trimmed or even removed.

There is generally a process invoving informal talks, attempts at mediation and often submission to a recommendation of a community "tree committee" before you have a right to bring a legal action to regain your lost light. Check with your town's Municipal Code (almost all the Municipal Codes for the whole United State can be found at http://www.municode.com/library/library.aspx )

Tree Law on the Radio!

2011-09-22T09:35:00.000-07:00

Tonight, Thursday, Sept. 22, 9 PM, PDT, for those of you in the San Francisco Bay Area (and sometimes the signal goes north to Seattle, south to LA) I will be on the Peter B. Collins show with hubby, "Tree Detective," Ray Moritz, to discuss what can go wrong with your trees, what damage can be done to them, and what you can do about it.

Tune in and call in with your questions. 810 on your AM dial. Or listen at http://www.kgoam810.com/article.asp?id=2101434

Who ya gonna call when you got tree problems? Call the Tree Detective!

2011-08-21T09:57:00.000-07:00

Here's an article about my husband, consulting arborist, fire ecologist, certified tree hazard assessor and urban forester, Ray Moritz. Got tree issues? He's the one for you. Got neighbor issues too? We work together on Tree Dispute Mediation.

Check it out.

Arborist Ray Moritz sees the forest for the trees

Edward Guthmann, Special to The Chronicle

Wednesday, August 17, 2011

Ray Moritz grew up in a prairie town in Illinois. He always loved trees, and in the second grade he took an aptitude test that concluded, "You should be a forester."

"I ignored that all the way through the first portion of college," Moritz says. "I wanted to go into biopsychology - the study of brain function. But then I started doing docent work at an arboretum on weekends and I thought, 'Wait a minute, this is what I want to do.' "

Moritz, 67, hasn't looked back. An arborist specializing in fire-prevention assessment and urban forestry consultation, he alternately calls himself a tree detective, a tree whisperer and a forensic forester. He's worked 36 years in his field

"I love what I do," Moritz says in the San Rafael office of his consulting firm, Urban Forestry Associates. "I can't imagine doing anything in retirement I would prefer to this. They'll have to carry me out of the woods feet first."

Fifty percent of his work is private consultation: advising homeowners on which trees to plant, how to treat diseased or pest-ridden trees, when trees should be left alone and when they're a safety hazard and need to be felled.

Another 25 percent of Moritz's work is fire-management consultation and the remaining 25 percent is forensics: investigating cases where someone poisons a neighbor's tree, for example, or determining how a tree or its limb crashed onto a person, house or car and who, if anyone, is at fault. He's often hired as an expert witness on tree-related disputes at civil trials.

Poisoning a neighbor's tree? Moritz says it happens all the time, "simply because they find the tree a nuisance. You'll hear people say, 'I don't like trees because they're dirty.' In most cases they are people who grew up in highly urbanized areas, then moved to the country and aren't used to having leaves and twigs around."

From 2004 to 2009, Moritz wrote a twice-monthly column, Ask the Arborist, for The Chronicle. "It was a lot of fun, but after each column, I would come into the office with great dread because when I opened my e-mail, there would be a lot of questions about trees. It was consuming a big portion of my time, and people would get upset if I didn't answer them."

The passion felt for our trees can lead to bad decisions. "Trees have great psychological meaning to people," Moritz says, "and one of the commonly mistaken notions is that trees are eternal. There are some trees that are awfully long-lived and, generally speaking, trees have longer life expectancies than people. But there are many trees that don't."

In the Bay Area, "there was a lot of grazing land when people first settled here. They wanted trees for shade and enjoyment and they wanted them fast. So they went out and got what I call the 'punk rockers' of the tree world: eucalyptus, Monterey pine, Monterey cypress, poplars. The live-fast, die-young, be-a-beautiful-corpse trees."

The people who planted those trees in the early 20th century are long deceased, Moritz says, "and the current homeowners and cities are dealing with the decay and decline of those trees. In the past two years, I've had more wrongful-death cases caused by tree failures than in my entire prior career of over 30 years."

Moritz says that people get attached to trees, they dread their loss, and that when a tree is gone, they mourn it like a beloved friend. "When the tree has to go altogether, when I've made a hazard assessment and I recommend immediate removal, some people are reluctant and don't remove it. I make it clear to them that, once I have notified them of this high risk of failure, their liability changes should that tree damage someone else or their property."

Usually, people respond to an imminent hazard. "Yesterday, a homeowner noticed some cracks in the soils around a couple of Monterey pines. While the trees were not a particular threat to her house, they were on a steep slope, and they actually targeted her neighbor's house across the street.

"So I went out there and probed the soils and realized that the root plate of the tree was lifting up. That tree was essentially in the process of failure. I believe that tree is being taken out today."

3 simple rules

"Trees got along fine for millennia before there were arborists," says Ray Moritz. Although special care is needed in urban settings with the stresses of pavement, home construction and pollutants, he says that in general "there's much more work done on trees than necessary." Here are his three simple mistakes to avoid:

1. Don't overwater: The most common problem I encounter when I inspect trees is excessive irrigation - which is surprising in Marin County, where water costs practically as much as Chardonnay. The symptoms on a tree of inadequate water are very similar to the symptoms of too much water. So, people see a tree starting to die back, the leaves changing color and browning, and they'll think, "It needs more water." They put more water on it and the tree declines that much faster.

2. Don't overspray: Trees are well adapted to most native pathogens and insects. And those pests have natural enemies - typically other insects - that maintain a balance in the forest. If you consistently and abundantly use broad-spectrum pesticides, spraying the whole canopy repeatedly, you kill off the predators. You're actually making the problem worse.

3. Don't top your trees: Topping takes out the physiologically most productive portion of the canopy. You can reduce the extent and height of the canopy through crown reduction, where you take a branch back to a secondary branch that can ultimately take over as the leader. But, if you cut that branch off arbitrarily, it produces sprout growth. As the sprouts get large, becoming branches, they're easily torn away from the tree by wind or simply fail under their own weight.

More on Tree Mediation

2011-08-18T12:25:00.000-07:00

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.

City Blinks First on Albert Park Pro Ball Issue

2011-08-11T11:11:00.000-07:00

The City of San Rafael has been poised to approve a controversial proposal to bring pro baseball to the community's Albert Park field located adjacent to the densely populated Gerstle Park neighborhood. Currently, the ballfield hosts many youth and adult baseball teams throughout Marin and the Bay Area, a number of whom will be displaced by a pro team's use of the field. The proposal by Centerfield Partners (CP), of Dublin, California, would essentially allow the private for-profit company free rein with the public park, including doubling the seating capacity, using the park for at least 15 weekends from late May through early Autumn. Residents in Gerstle Park and the Southern Heights neighborhood have raised concerns over parking, traffic congestion on local streets and increased noise reverberating up to hillside dwellers.

Amplified music, concession stands in park open space and a grove of redwood trees and the sale of alcohol, have added to the residents' complaints, forcing them to hire attorneys, take up petitions and form an association, dedicated to pressuring the Council to perform necessary environmental review.

The association, Communities for Albert Park (CAP), has won the first skirmish in what may be a protracted baseball war. Previously the Council as well as the parks and Rec Department had insisted the project was exempt from review under California's Environmental Quality Act (CEQA).

After repeated hearings, letters and testimony from attorneys retained by CAP, including land use attorney Dotty LeMieux, whose office is in Gerstle Park, the City grudgingly agreed to perform the first step in CEQA review, the preparation of an Initial Study, which will be used to determine whether a full Environmental Impact Report (EIR), or a less detailed Mitigated Negative Declaration of environmental Impact (Neg. Dec.) is required.

At least the subcommittee made up of Council member Damon Connolly and Mayor Al Boro so agreed. The full Council will vote on Monday night whether to take this step. It should have come months ago. But it is a step in the right direction, and CAP applauds the City for relenting (though the City maintains it is not required, and agreed to it only after CP, realizing it was bucking a strong and well organized community group, whose good will they need to succeed, agreed to fund the study).

This study will not answer all the community's questions and may well raise more, but as Attorney Dotty LeMieux said, "We are grateful to the Mayor for realizing this the the right thing to do for the City and for the environment." She added, "We will however, be sure to make our wished known for what the Initial Study should look at in order to assure the best information is provided and the City doesn't simply use a cookie cutter checklist to justify not doing a full environmental review for this major change in use of a popular public facility."

More on Privatization of Albert Park

2011-07-21T10:50:00.000-07:00

Article in IJ gives just a snapshot of the hearing at the City Council Monday night. We learned that this business entity, Centerfield Partners, wants to open 4 Bay Area pro ball teams, and that the City will be subsidizing this one to the tune of at least $25,000. No benefits to the City or business were outlined, save a feel good appeal to civic pride and kids' (and grown ups) desire to watch baseball. Many of these minor league ball teams have failed and take local businesses with them.

Why not set up a local non-profit Friends of Albert Park instead? Raise money the old fashioned way and keep our local teams playing in San Rafael.

Article below. I am helping the local citizens who want real environmental and fiscal review before approval:

San Rafael council delays Albert Park pro baseball decision

By Jessica Bernstein-Wax
Marin Independent Journal

Posted: 07/19/2011 09:40:08 AM PDT

Click photo to enlarge

The Marin Academy High School varsity baseball team warms up before their game against Drew High...

After more than three hours of public comment and presentations — and one near-scuffle, the San Rafael City Council put off voting on a plan to bring professional baseball to Albert Park.

The council opted to delay weighing in on the proposal from Centerfield Partnership to start a new North American League team in San Rafael shortly after midnight, citing the late hour and still unanswered questions.

"In light of the hour, I don't think it would be very prudent to continue," Mayor Al Boro said. Boro noted that he and Councilman Damon Connolly would work as a sub-committee with city employees to bring the issue back in two to four weeks.

"What I'd really like to see happen is to see Centerfield Partnership meet with some of the neighbors" before that meeting, Councilman Greg Brockbank added.

During the at-times tense meeting, audience members cheered, hissed and booed during employee and applicant presentations and public comment. Two men on opposite sides of the issue appeared to be on the verge of a fist fight at one point, with one exclaiming "Let's go" and then alerting police officers in the building lobby about the "knucklehead" inside.

However, everything ended peacefully, and most of the approximately 300 people who packed the chambers and a seating area in the building's lobby listened and spoke calmly despite the crowd.

Under the proposal, Centerfield Partnership would lease the lighted baseball diamond,

which dates to the 1950s, from the city on a non-exclusive basis. It would also spruce up the 700-seat grandstand structure, add temporary seating for up to 800 more fans, upgrade the bathrooms and locker rooms and put in modern netting behind home plate, among other improvements. Centerfield plans to apply for a liquor license but wouldn't serve beer and wine after the seventh inning in accordance with major- and minor-league protocol, company officials have said. It would provide security and cleanup services as well as paid parking for about 700 cars in the San Rafael Corporate Center's Seagate lot.

The team's approximately 45 home games would take place between late May and mid-September, with games starting at 7:15 p.m. on week nights and Saturdays, at 7:30 p.m. on Fridays and at 1:05 p.m. on Sundays. The city expects to pull in between $4,000 to $12,000 a year in net revenue from the agreement, which covers a three-year period.

The plan hasn't sat well with everyone, and some neighbors have hired an attorney over concerns about traffic, parking, lighting, noise, alcohol consumption and general rowdiness. Opponents also expressed concerns Monday night that the city would actually lose money on the proposition.

"My concern is how much the city, who just asked their employees to take a cut in pay, is committing themselves," said Ray Moritz, who owns a forestry business on Willow Street near Albert Field . "It seems like the city's not getting a really good deal here."

Dotty LeMieux, an attorney representing some opponents, said she was worried that Centerfield was only looking to turn a profit.

"This is not a San Rafael team," LeMieux said. "These players don't live in San Rafael. This business is not a San Rafael business. San Rafael's not getting anything from this."

Meanwhile, resident Alezz Laielen said she wanted the city to look into potential negative effects the public address system and other baseball noise might have on residents' hearing and health.

"I can certainly feel sometimes the percussions from the farmers market," Laielen said. "Even people that aren't even aware of chronic noise, it damages their immune system. It's causing heart attacks."

But resident Barry Taranto suggested opponents were thinking of minor league baseball in exaggerated terms.

"We're not talking about Barry Bonds playing in every game, and we're not talking about rock concerts," Taranto said.

Resident Mike Lewis, another supporter, called the proposal a "fantastic opportunity for the city of San Rafael and the local downtown community to have a ballpark.

"Anything you can do to help out our downtown is fantastic," he said.

Eric Ahern, a 12-year-old Hall Middle School student dressed as a box of popcorn, stayed at the meeting until almost midnight with a group of friends in peanut, cracker jacks and hot dog costumes.

"Putting a minor league baseball team in Marin is putting smiles and joy on kids' faces and giving them something to do," Eric said. "The location is ideal and practical because kids can either bike or"...walk."

Privatization Scheme for San Rafael's Albert Park

2011-07-13T09:33:00.000-07:00

A private outfit wants to privatize most of the use of Albert Park ballfield, a community field in San Rafael, mostly used by youth and amateur tams now, for a minor league Baseball team, that does not yet exist. They want heavy city subsidies, increased seating (more than double) concession stand, which serve alcohol, parking, loss of the amenity for most of the public use; and of course, the will charge admission, and pay minimal rent to the city.

All with no environmental review whatsoever. Nor economic analysis. At least Target had to do that. Sholdn't they have to go through at the very least the design review you must go through for any minor ome improvement projects? What's wrong with this picture.

Oh, and the capper, this outfit has no experience starting teams; its CEO is a travel and aviation expert. A Sonoma political operative is consultant, along with one guy who also consults with other teams. Where is heir business plan? Who will attend these games? ow much will they cost? How much is parking?

Lots of unanswered questions. Hearing on July 18, City Council chambers, San Rafael. Call, write to your council member today! Tell them you want an EIR and Economic Impact Report.

Friends of the Garden file suit in San Mateo

2011-06-20T15:49:00.000-07:00

Can you say "Pave paradise to put up a parking lot" kids? Not just a song, it's happening all over the place. Here's today's Chron story on how San Mateo Community College students and neighbors are fighting back:

Suit filed to preserve College of San Mateo garden

Students and neighbors of the College of San Mateo who enjoy visiting a tangled campus garden sued the college district and its trustees in San Mateo County Superior Court on Friday in a last-ditch effort to save thousands of square feet of greenery from being turned into a parking lot.

Friends of the College of San Mateo Gardens, a loose-knit group that has fought the paving plan for months, say in their suit that San Mateo County Community College District trustees failed to perform a state-required environmental review before approving the plan last month.

"The district unlawfully approved a project with potentially significant environmental impacts without preparing" the report required by the California Environmental Quality Act, according to the complaint.

The project will result, the suit said, in the destruction of a "well-used, much-loved cultural landscape that now provides the only mature green area on campus conducive to reading and walking ... and support for wildlife." The garden was planted in 1963.

While district officials declined to comment on the suit's specifics, they defended the project, saying they intend to remove just 13,500 out of 50,000 square feet of garden.

"Our board believes the community college district has acted lawfully," said Richard Holober, president of the Board of Trustees.

Legal advice

Both an attorney and a consultant advised the district that a full environmental review was not required because the district wasn't proposing a new development, but only a modification of an existing project approved in 2006, said Barbara Christiansen, spokeswoman for the college district.

That original project called for preserving the garden, some greenhouses and Building 20, a 48-year-old structure housing a floristry program with just four students and a horticulture program that has been on hiatus for two years because of budget cuts.

College officials argue that Building 20 is no longer needed because new classrooms have been built elsewhere on campus. New labs and office space, along with a facility that can be rented to the public, require additional parking.

"As a result, the (college) administration decided that it would be best to demolish Building 20 and the associated green houses; construct approximately 125-200 parking spaces (replacing 30-40 spaces now there); and retain most of the garden area to be used by science classes," Christiansen wrote in a letter being sent out to anyone who expresses concern about the garden.

Case for full review

The students and neighbors suing the college district dispute that version of events in one key respect: They say the demolition project is not a modification, but a new project - one that ultimately will include the construction of an amphitheater - and therefore requires a full environmental review.

The group cites negative impacts of the project on wildlife habitat, water quality and campus aesthetics, and even cautions about the production of greenhouse gases.

In their lawsuit, the group says the college district also provided inadequate public notice of its intentions and asks the court to stop the project.

The suit also quotes an unnamed English instructor who wrote the college expressing appreciation for the garden.

The letter describes the doomed garden as "the only place left on campus where students, faculty, and staff can go to get away from the concrete and rigid plots of monoculture plantings that have taken over the campus."

It's a place "where we can enjoy nature's kindness, bounty, and wonder, relax, sit on the grass, and leisurely explore and experience its mini-climates and ecosystems so carefully nurtured over the past 40 years."

E-mail Nanette Asimov at nasimov@sfchronicle.com.

This article appeared on page C - 1 of the San Francisco Chronicle

Tree Dispute Mediation - A New Service of our Law Firm

2011-06-03T16:19:00.000-07:00

Green Legal Solutions, the law office of Dotty LeMieux, is pleased to announce the addition to her property law practice the Mediation of Tree and Vegetation disputes.

Joining her is urban forester and consulting arborist Ray Moritz, well known throughout California for his forensic skills in analyzing tree failure, hazards, disease, view vista pruning and valuation for thorny legal cases. Moritz has been an expert witness in hundreds of cases involving tree and view disputes, tree damage trespass, wildland fires, property damage and wrongful death involving trees. He has also served as a neutral expert in mediations through the former Marin Community Mediation Service and participated in dozens of mediations for clients.

LeMieux specializes in litigation involving tree and view disputes, property and land use issues, as well as public interest environmental law emphasizing work upholding the California Environmental Quality Act. She has been trained in Dispute Resolution and Environmental Mediation as well as work in transactional analysis.

This unique new Tree Dispute Mediation service offers help to neighbors, insurance companies, public agencies and private companies before or during litigation for optimum results. A neutral evaluation of your tree issue, early in the process can save all parties time and money and result in a fair disposition of often prickly disputes involving neighbors and their trees.

Blog readers may post a comment or email me for more information. Or visit us on Facebook: https://www.facebook.com/pages/Tree-Dispute-Mediation-a-service-of-Green-Legal-Solutions/134208029947107

Environmental Review Needed on Massive AT&T Utility Box Project

2011-05-17T08:20:00.000-07:00

Article in today's Beyond Chron:

by Milo Hanke‚ May. 17‚ 2011

Despite environmental concerns, AT&T is pushing its plans to install 726 refrigerator-size, sound-emitting utility boxes on city sidewalks. The massive installation will proceed unless the Board votes to require an environmental impact report (EIR). The vote, scheduled for Tuesday, May 24, is an affront to a strong coalition of community groups that believe an EIR is needed on this project.

Allowing AT&T to do what it wants with our public sidewalks without examining the effects on our environment is just plain wrong.

Using its influence at City Hall, AT&T sent its lobbyists to secure a blanket “categorical exemption” from an EIR. This EIR exemption allows AT&T to disregard any environmental impacts caused by the giant utility boxes that will litter our sidewalks. San Francisco Beautiful (SFB) and Planning Association for the Richmond (PAR) challenged that determination and filed an appeal with the Board of Supervisors. A growing number of community groups support the appeal to require an EIR.

Normally required of any large scale project, an EIR would produce objective and transparent analysis to measure the impact upon our neighborhoods.

At the same time, it should ensure good faith efforts are undertaken to mitigate or eliminate environmental impacts. An EIR should buttress enforcement of existing regulations that prevent the needless privatization of our public sidewalks.

The Board of Supervisors first heard the appeal last month. During five hours of testimony, AT&T told the full Board of Supervisors reasons it was either unable or unwilling to comply with City regulations that require their boxes to be primarily placed underground on private property.

AT&T is attempting to sidestep the more costly alternatives required under regulations signed by Mayor Ed Lee in 2005, when he was Director of the Department of Public Works. Those regulations state that, if not placed underground, utility boxes are to be placed on private property. This private-sector solution requires genuine, thorough efforts to contract property owners who are willing to lease space for Internet and cable equipment. These existing regulations state that street-level fixtures are a last resort only if the other two approaches prove technologically or economically infeasible.

In writing the 2005 regulations (and after extensive collaboration with San Francisco Beautiful, AT&T and others), Lee determined “…surface-mounted facilities in the public right-of-way will impede travel on public streets, inconvenience property owners, create visual blight, or otherwise incommode the use of the public rights-of-way by the public.” So, as a matter of City policy, utility boxes are blight.

AT&T’s 726 proposed utility boxes are four-feet high, over four-feet wide, and over two feet deep. They would be flanked by vertical posts to prevent damage by vehicles. And they emit noise, the steady sound of an electric toothbrush, says AT&T.

Already intrusive, the utility boxes will be permanent graffiti magnets, obstacles to the visually impaired, and hazards to opening passenger car doors. Property values are jeopardized since a utility box certainly detracts from the “curb appeal” of one’s house or commercial property.

Contrary to its ad slogan, AT&T seemingly refuses to “rethink possible.” An EIR would force the opposite, and indentify current, practical and equitable means to vastly reduce utility box blight. At the same time the City’s high-tech infrastructure would expand – all in environmentally responsible ways that are possible today.

Milo Hanke is a member of San Francisco Beautiful, a civic organization that seeks to maintain the city’s natural environment and history.

Hubby's on You Tube. Talking about the UCSF eucalyptus trees

2011-04-21T08:13:00.001-07:00

See the You Tube video on the UCSF Eucalyptus management plan, featuring my hubby, consulting arborist extraordinaire, Ray Moritz. http://www.youtube.com/watch?v=KCUV8a22_QE&feature=search

What is "Green" Development?

2011-04-12T11:47:00.000-07:00

Is there such a thing? Can you have a development that's truly green, and not primarily for the developer? Is it a non-profit project, or any old building that saves some open space, uses so-called green building materials and solar panels?

How about sustainable? What is that in the development context? Your answers awaited here.

Most popular questions for the Blog

2011-03-10T11:17:00.000-08:00

Check out the section of this Blog on easements. It gets more questions from readers than any other, than all the others put together for that matter. What's up with that? Lots of landlocked people out there. Lots of neighbors don't want to share. Tell us your story. And check our Facebook page and like us: Green Legal Solutions

Quarry approved in Sonoma County

2010-12-12T09:48:00.000-08:00

Yet another article on a local bad deal for the environment and family farms; this one cries out from strong legal action. Thanks Shirlee Zane for standing up to the pressure; bad precedent is right. Giveaway of public resources perhaps?:

Roblar Road quarry debate not over
County gives tentative OK to substituting 105 acres of private land for habitat restoration

By BRETT WILKISON
THE PRESS DEMOCRAT

Published: Saturday, December 11, 2010 at 3:00 a.m.
PD File
John Barella.

The debate continues over the merits of a controversial land deal, tentatively approved Tuesday, involving publicly protected Sonoma County farmland.

Retiring Supervisors Mike Kerns and Paul Kelley, and board Chairwoman Valerie Brown, backed Roblar Road quarry developer John Barella's plan to use 105 acres of adjacent, taxpayer-protected private ranchland to replace rare amphibian habitat that will be lost when rock is extracted in his $60 million project.

The 3-2 vote, in which Supervisors Shirlee Zane and Efren Carrillo opposed the proposal, has fueled continued discussion over whether the deal provides public benefits and its policy implications for the county's 20-year-old Agricultural Preservation and Open Space District.

Supporters praised the board majority, saying they looked beyond the controversy surrounding the quarry and upheld the purpose of the open space district and its protection agreement on the 105 acres of farmland.

“The board dealt absolutely appropriately with the issue before them,” said former five-term county supervisor Tim Smith, who has worked for Barella. “The district is in the position to fulfill a couple of missions at the same time. Preservation of agriculture and preservation of natural resources. That focus tends to get lost when it's connected with a quarry.”

But critics said the decision sets a dangerous precedent by tampering with agreements intended to be permanent, known as conservation easements, and opening up district-protected lands for habitat requirements connected to a private development.

“Once you start fiddling with those easements, it's all downhill from there,” said Bill Kortum, a former county supervisor and Petaluma environmentalist who has served nearly three decades on the board of the Sonoma Land Trust.

The normally apolitical group also opposes the deal, which Kortum and others say could open the door to widescale private habitat mitigation on district-protected land.

In Barella's case, the deal could save him $5 million to $15 million — the cost of equivalent acreage or more pricey “habitat credits” he might otherwise have to buy — according to figures provided by mitigation experts.

Barella, who declined interview requests last week, has disputed those figures, saying he has land elsewhere in the county that might be suitable for mitigation.

Critics countered that an established principle in habitat mitigation is the addition of new protected lands. They said that step would not happen in the deal with Barella, though he has offered the district title to the 200-acre quarry property and an easement on his 244-acre Petaluma River ranch.

“The public has huge investments in buying these easements,” Kortum said. “Why should they further the lining of a developer's pocketbook?”

Speakers in Tuesday's packed public hearing represented viewpoints from both sides.

Kerns, who represents the south county area slated for the quarry, and Brown, the board chairwoman and swing vote Tuesday, framed the issue in both narrow and broad terms.

The property in question is a 388-acre rangeland parcel owned by Diamond W Dairy co-owners Ken and Clairette Wilson. The supervisors said carving out a piece for endangered California tiger salamander and threatened California red-legged frog habitat made good biological sense since the amphibians live on the adjacent quarry property.

They also disagreed with district staff and the advice of the County Counsel's Office and determined that any further farming restrictions on the Wilson property to protect habitat would be consistent with the current easement that protects agriculture.

Both also cast the issue in larger terms.

District-protected lands should be on the table when habitat mitigation is required of private or public developments, they said.

The public benefit of such deals comes in the additional habitat they provide for endangered species, they said.

Kerns went further, echoing quarry supporters who spoke Tuesday by saying such deals also enable developments — be it the widening of Highway 101, construction of the SMART rail line, or a quarry — that provide public benefit.

“Where are we to mitigate for that if county protected lands are not on the table?” he said. “This will allow certain types of development to go forward that otherwise might not be able to go forward.”

Both said such decisions should be made on a “case-by-case basis.” They also disagreed with critics that Tuesday's vote set any new precedent, or that it would undermine taxpayer and landowner support for the district.

“It's hard for me to believe that based on a decision to combine cattle and tiger salamander that, ‘Oh my gosh, I'm never going to support the open space district again,'” said Brown. “I think people are much more savvy than that.”

The two supervisors also echoed quarry supporters who said the issue wouldn't have garnered much attention if it hadn't been connected to the hotly disputed quarry project. It is set for formal approval Tuesday, along with the open space deal.

But critics, including land conservationists, dairy belt landowners and ag leaders, some of whom didn't take a stand on the quarry, said any instance of changing or reinterpreting conservation easements, which are designed as permanent documents, should set off alarm bells.

“If you allow modifications for a good cause, then the next step is maybe one that is not so good,” said former south county supervisor Jim Harberson, who was a leader in the open space district's formation.

“The public has a perception that ‘in perpetuity' means that (easements) are not open to reinterpretation by different boards of supervisors over time,” said Lex McCorvey, executive director of the Sonoma County Farm Bureau. The vote was a “head-scratcher” for the farming community, he said, because it relies on the “certainty” of such agreements.

“I'm not sure that the board gave us confidence in the integrity of the district's easement policies,” he said.

In the aftermath of last week's hearing, all sides have called for the open space district to resume work on a policy that could guide such decisions in the future. The district's citizens advisory committee, which unanimously opposed the deal, had called for postponement of Tuesday's vote to allow for a draft policy, shelved more than a year ago, to be completed.

Meanwhile, any final go-ahead for the deal will have to come from state and federal wildlife officials. Their input is not expected until Barella completes his formal application, which his biologist said wouldn't happen until spring.

The Tresch dairy family are also mulling their next move.

The family opposed the deal because a 368-acre piece of their rangeland adjacent to the Wilson property is covered by the same conservation easement. The Tresches say their farming operations on that land could be restricted without their consent to protect the rare frog and salamander habitat to be added to the Wilson property.

A legal challenge is not out of the question, Kathy Tresch said.

“We're still kind of in shock,” she said.

You can reach Staff Writer Brett Wilkison at 521-5295 or brett.wilkison@pressdemocrat.com.

Copyright © 2010 PressDemocrat.com — All rights reser

Train vs. Tree in Palo Alto

2010-11-22T08:15:00.000-08:00

Read this interesting article on Tree vs. Train in today's Bay Citizen
By Doug Ray, Peninsula Press on November 19, 2010 - 3:29 p.m. PST

Towering 10 stories above the banks of San Francisquito Creek, the El Palo Alto redwood predates the U.S. Constitution by more than 800 years. It is widely believed to have been a campsite for explorer Gaspar de Portola when he discovered San Francisco Bay in 1769.

It has endured everything from ecological changes to economic shifts, all of which left marks on the ecology of this venerable tree. Now it’s entangled in the debate over high-speed rail.

The tree stands within 10 feet of existing Caltrain tracks between the Menlo Park and Palo Alto stations, with commuter trains passing by 90 times every weekday. Initial plans by the California High-Speed Rail Authority called for widening the tracks to accommodate the new rail line, which would put the tree in jeopardy. Proposed alternatives included a trench or raised track.

To be sure, critics cite many reasons for their opposition, including the costs. But in Palo Alto and neighboring communities, the tree has become a budding symbol for why high-speed rail — approved by a majority of the state’s voters in 2008 — needs to be evaluated carefully. Dave Dockter, Palo Alto city arborist and current steward of the tree, said, “I think all of the alternatives have a potentially significant and catastrophic potential to impact the El Palo Alto redwood.”

For example, he said, relocating the train tracks could disrupt the tree’s root system.

“The environmental review information [submitted by the city of Palo Alto] has already stated that the placement of any alternatives must be addressed to protect the root plate to prevent catastrophic toppling of the entire tree,” Dockter said. “I think that is one of the first issues that need to be resolved and discussed before the High-Speed Rail Authority can even make it to first base in creating minimal impact to this tree.”

High-Speed Rail Authority officials emphasized that protecting important historical and environmental treasures is a priority. Spokeswoman Rachel Wall said the authority is completing a series of environmental reviews, each addressing increasingly localized concerns.

“There was the broad, program-level [Environmental Impact Report] for the Bay Area, for the Central Valley and for the state,” she said. “Those are really the big, overarching, program-level environmental certifications that we did back in ’05 and then in ’07 and in ’08. What we’re doing now is project level work where it’s more specific and it’s broken down by the 10 segments in the project.”

The initial Environmental Impact Report briefly mentioned the El Palo Alto redwood as a key historic resource but did not get into details about ways to protect it. The report did address how the high-speed rail project would affect El Palo Alto visually, calling the impact minimal because the tree dominates the landscape.

In a recent interview, Wall said, “I know that the Caltrain right-of-way is very close to that tree. I’ve heard you can reach out and touch it, essentially. But certainly our project will avoid, minimize or mitigate that impact wherever possible … in all likelihood, avoiding it, because it’s such a historical resource for our state.”

El Palo Alto is a coast redwood, a species best known for producing some of the tallest and oldest trees on Earth. Some redwoods have grown as tall as 30- or 40-story buildings and have lived for more than 3,000 years. Redwoods have long been a symbol of the conservation and environmental movement, influencing, most notably, Sierra Club founder John Muir.

Ruskin Hartley, executive director of the Save the Redwoods League, said, “If I look at the whole sweep of conservation efforts, I would argue, to a large degree, they started with the redwoods. In 1864, one of the first conservation acts, protection acts, was the Federal Government setting aside the Mariposa Grove of giant sequoias and the Yosemite Valley for protection. Redwoods themselves have inspired protection acts going back at least 150 years.”

Coast redwoods are rare trees, found sporadically along the Northern California and southern Oregon coast. They are considered a vulnerable species by the International Union for Conservation of Nature. “In the last 150 years, more than 95 percent of the ancient coast redwood forests have been logged,” Hartley said. “Today, anywhere that we find ancient monarch trees that are a relic of the past is a place we need to work to protect.”

Among redwoods, El Palo Alto itself is an anomaly. Very few coast redwoods are found naturally this far into the valley and even fewer are as old or tall as El Palo Alto. El Palo Alto is estimated to have stood on the banks of San Francisquito Creek for 1070 years.

Yet, Dockter pointed out, “It is only been in the last century that mankind has had an effect on the tree, which are manifold. Many, many effects have influenced the tree both above-ground and below-ground. Incidentally, there are other conditions that are even beyond the railroad’s effect on the tree, and one is just our human culture has actually altered the water table in the Santa Clara Valley, which I believe had a dramatic effect on the health of El Palo Alto.”

Early photographs show that El Palo Alto once had two trunks. The widely held belief is that one trunk was washed away in a storm in the 1880s. Dockter is not so convinced. “There’s another controversial thought that maybe the tree came out of necessity for the previous wooden trestle to be put in. There is no record of the actual event that took that second spar out, whether it was a storm or whether it was actually Southern Pacific Railroad crews that could have taken it out on a weekend or something and it just didn’t get reported in the local media,” he said.

The tree is an important symbol for the Peninsula region. It is featured on the seals of Stanford University and the City of Palo Alto. An anthropomorphized version of El Palo Alto has served as the unofficial mascot for Stanford athletic teams since the early 1980s and has even been featured in a commercial for ESPN’s Sports Center.

Trains have impacted the tree’s health for the past century and a half. Until the advent of diesel in the middle of the 20th-century, trains powered by the combustion of wood and coal would storm past the tree, leaving layers of soot that would effectively suffocate it in layers of carbon. Dockter noted, “The first carbon footprint impact was to the El Palo Alto redwood from smoke, actually.”

El Palo Alto is a symbol of survival. As Hartley put it, “I think what this story shows is just how resilient these trees can be if we don’t cut them down. That tree has had just about everything thrown at it with the exception of a saw; its top has died back, and its lost limbs and its lost a trunk, but the tree is still there.”

Seattle - the Emerald City - Relaxes its Tree Protections

2010-10-27T08:53:00.001-07:00

Is this the beginning of a trend? Read on:

SEATTLE -- Towering Douglas Firs and lush urban parks helped earned Seattle the nickname Emerald City, so it's not surprising that felling a tree can prompt heated responses.

A judge was fined $500,000 for cutting down more than 120 cherry and maple trees in a city park for better views, and residents fought for years to save a mature grove of 100 Douglas firs from being cleared for development.

Tree lovers are now fighting proposed city rules that would remove current protections for large, exceptional trees, and do not include a requirement that property owners get a permit to remove a tree.

"We're the Emerald City because of the trees," said Cass Turnbull, founder of PlantAmnesty, a Seattle-based nonprofit, who favors a permit system as a way to slow down tree-cutting and give people pause. "Trees grow here very easily so we tend to take them for granted."

The proposed tree regulations come at a time when the city is trying to expand its tree canopy to 30 percent by 2037, and a city audit last year called for improvements in the city's stewardship of trees. Seattle's tree coverage shrank from 40 percent in 1972 to about 23 percent in 2007.
AP Photo - Kimberly Christensen climbs several feet off the ground and atop a massive branch on a silk tree, newly-designated as an "exceptional tree," in front of her home Wednesday, Oct. 13, 2010, in Seattle. The specimen, also known as a mimosa tree, is estimated at over 50 years old. The latest target of community rage among tree lovers in Seattle are proposed rules that, among other things, would no longer require residents to get a permit to fell a tree on their property.

The city council passed interim tree rules last year and directed city planners to come up with new private-tree regulations, now out for public review. The city council isn't likely to take up the issue until next year.

Many communities, such as Kirkland, Wash., and Miami-Dade County, have a tree-removal permit system. Some, like Atlanta, require property owners to pay to replace every tree they remove that's not hazardous and more than 6 inches in diameter.

Brennon Staley, who is managing Seattle's regulations update, said the city weighed the pros and cons of a permit system, and decided it is too difficult to enforce, is ineffective and creates a burden for property owners. The city, instead, would require developers of new or replaced homes to get a certain number of tree credits by planting or retaining trees, among other proposed rules.

The city's newly appointed Urban Forestry Commission is also pushing for a permit system.

Josh Robinette, 32, a Seattle machinist, doesn't agree.

"Personally, I think if it's your private property, within limits, you should be able to do what you want," said Robinette. "If you have a tree that you don't want, or it's diseased, you should be able to cut it down without a permit."

Last year Robinette said he was fined $22,500 for cutting down a massive diseased Douglas fir in his front yard. He appealed - and won - arguing he was given wrong information from city workers.

Garrett Huffman, Seattle manager for the Master Builders Association of King and Snohomish Counties, said the existing protections for exceptional trees have hampered development and he is glad it's not included in the proposed rules.

The city has decided it wants urban growth, but "the battle right now is every single tree and it's inefficient," he said. "The city needs to decide whether it's a city of density with trees, or it's an urban forest that happens to have some people living in it."

Turnbull and others believe if people knew the monetary value of their trees, or got incentives like a utility credit for planting them, they'd do more to preserve them.

Researchers are currently trying to calculate what Seattle's trees are worth, in terms of water saved, pollution reduced, stormwater and drainage costs saved. The project involves the nonprofit Cascade Land Conservancy, the U.S. Forest Service, the University of Washington, Seattle and King County.

"Most people don't think about it," said Kathleen Wolf, a UW social scientist working on the project. "This helps in a very public way, what are the values of those trees?"

Trees have long been appreciated for their beauty and environmental value, but there's increasing recognition of their social, psychological and economic benefits as well.

"Planting and preserving trees is the cheapest and easiest way to assist in managing stormwater," said Charles Ray, urban forester for Vancouver, Wash., which requires developers of new homes to retain a certain tree density on site.

A tree's branches and leaves slow rainwater runoff, improves drainage and filters the grease, heavy metals and other pollutants that wash into waterways. Trees also reduce energy use by providing shade.

Kimberly Christensen, 38, said the presence of a magnificent mimosa tree in front of her Seattle home has shifted her thinking about trees and its value.

"I used to think, 'We own the house we can landscape it how we want to,'" said Christensen, who recently celebrated the mimosa's inclusion in the city's Heritage Tree program. "We've only recently started to think about the urban forests, and the good things that the trees can provide for our community."

Read more: http://www.fresnobee.com/2010/10/24/2130300/seattles-proposed-tree-rules-prompt.html#ixzz13ZiGDx00

Cut Down NOT thy Neighbor's Tree

2010-08-17T08:37:00.000-07:00

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.

Eucalyptus Trees head for the Supreme Court

2010-04-30T10:08:00.001-07:00

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.

Mark Prado
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
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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.

Eucalypts go the Supreme Court

2010-04-28T15:02:00.000-07:00

In my last post, I told of how a Larkspur homeowner vowed to take her case to save the Eucalyptus trees which have been terrifying the neighbors, to the Supreme Court, and now she is doing just that, the Court of Appeals having ruled against her.

Read more here.

Eucalypts versus the Neighbors once again

2009-11-18T08:13:00.000-08:00

Once again, a group of dreaded Eucalyptus trees, the shaggy aromatic, limb dropping bane of the urban landscape, is at war with its human neighbors. In this case, in Larkspur California. Eucalyptus trees have both their detractors and ardent defenders. They do serve useful purposes, even thought they are no natives to the US. They provide way stations to migrating Monarch butterflies, for instance, and in some places entire groves have been protected for that purpose.

My first legal case was an attempt to save Eucalypts on Angel Island from clearcutting by the California Park Service, who planned to restore a native grassland. My client, the poetially named POET (Protect Our Eucalyptus Trees) was passionate about the Blue Gums, and hired experts, among them my husband, consulting arborist Ray Moritz, to prove their point.

Alas, those trees were eventually removed, but not until the needed environmental studies were performed and I earned my first Defendant paid attorney's fees. The Park Service also was forced to use a kinder gentler method of removal that protected the fragile landscape around the trees themselves.

However, in many cases, these Australian interlopers have proved to be less than desirable, dropping bark and little Eucie nuts all over the place, and whose cracking limbs in rain and wind storms have landed on many a car and house, sometimes even on people, unfortunate enough to be underneath them at the time. These "widow makers" have even uprooted themselves to land with an earthquake like thud, often to disastrous effect.

Which brings me to the case of the Larkspur trees, beloved by their owner, feared by the neighbor. Again, enter my husband, the consulting arborist, who has weighed in on the side of the fearful neighbors. One of these giants has already fallen, and the rest stand mutely but menacingly over the neighbors' yard.

A Marin County Superior Court recently ruled in the neighbors' favor, decreeing that the trees must go. As another court said so eloquently many years ago, "A Eucalyptus tree that falls in the urban landscape is not an Act of God," or words to that effect. If these trees topple, their owner is likely to be on the hook, especially after having been warned of the hazard she is harboring.

The owner of the trees, however, has vowed not to remove them, "pledging to take the fight to the Supreme Court - or even jail - if necessary to protect her trees. 'This is why I bought the property. It has a lot of sentimental meaning to me.'"(San Francisco Chronicle, November 17, 2009.)

The case is on appeal and we will be watching it with interest.

Trees and Views and other Disputes

2009-10-07T14:34:00.000-07:00

Trees and Views are often points of contention in Marin County and other Bay Area towns and Cities. People love their trees and their views. Neighbors go to war against neighbors in order to maintain one or the other.

Often the casualties of these wars are the trees. They lie forlorn on the ground like dead soldiers, or are spirited away in the night like prisoners of war. Neighbors have been known to chop, spike, poison and slowly hack away at their neighbors trees, as they poke their heads up into the views.

Most valued are Bay vistas, but distant hills, valleys and even other trees are often the views in contention.

In other cases, neighbors let their raggedy cypress or leggy bamboo grow over, under and through their neighbor's fences and hedges, as if to thumb a leafy nose at the neighbor's concerns.
Many towns have enacted ordinances that address these issues. Protecting Heritage trees and setting forth procedures for squabbling neighbors to settle their differences without resorting to the axe or the courtroom. Often these efforts are in vain. Many times I have been called out after the damage is done. The trees are in pieces, the neighbors not speaking. What is the recourse but to sue the miscreants?

Or a feud that may have begun over a barking dog, or an overturned garbage can has turned into a full blown battle Royal. Bamboo spite fences soar high into the air, blocking sunlight from the neighbors. Stealthy actions take place in the wee hours of the morning; fences themselves, inanimate objects that they are, begin to inch along the ground, metal survey stakes that have been embedded in hard earth for decades vanish overnight. Giant trees fall like match sticks. "Prove it," growl the neighbors to one another from across the conference tables of their lawyers. Or the lawyers of their insurance companies. Where are the mediators, the peacemakers? Alas, sad but true, these are the kinds of cases that should settle through mediation and most often do not.

Do you have tree, view or property dispute issues you'd like to discuss on this Blog? Send them to me as a comment, and we'll post the best.

Things that go Bark! in the night

2009-02-06T09:33:00.000-08:00

There is little more annoying than being wakened up in the middle of the night, night after night, by the barking of dogs. Whether yapping from a distant hillside or next door neighbor woofs. Nocturnal baying, whining, bellowing and howling are not only unwelcome, they may well be illegal as well.

What is it that possesses otherwise normal human beings to leave their pet Fido outside in the night, where he can be distracted by all sorts of critters that prowl after dark? Raccoons, skunks, deer, teenagers stealthily returning home after curfew, and marauding cats, all can turn man’s best friend into his worst nightmare.

Here are some tips for those of you whose sleep has unraveled due to the insensitivity of neighbors:

First track the offenders down, then:

1. Talk to the neighbor. sometimes they just do not realize their beloved pooches go from darling Dr. Jekyll when they are around to menacing Mr. Hyde in the dark of the night. Are other neighbors affected? Try a petition or maybe an intervention. Be polite, but let the offending dog owner know there are real problems with this behavior.

2. Record the yipping. You’d be surprised how effective this can be when played back over the offender’s answering machine, to convince them, yes, it is their dog making all that racket.

3. Know your local ordinances. Most cities and towns have noise ordinances prohibiting the dog barking that continues for an unreasonable time, or late into the night, usually after 10 PM or so. Present this information in your initial approach.

4. Do call the police. If the friendly methods don’t work, the police will respond to a noise complaint. Sometimes a warning from the boys in blue is all it takes for a recalcitrant dog owner to quiet the pooches down.

5. Have a lawyer write a letter. Sometimes this is the only thing that shows you are serious. There are stiff penalties for this kind of nuisance, including having the dogs removed from their owners’ possession. A lawyer can explain this in terms that may get their attention, if they have blown you and the local constabulary off.

6. Take the scoundrels to court. Yes, Virginia, there is a doggie court. It’s the court of last resort in a neighborhood dispute. Bow Wow! True story. My neighbors and I had been woken up repeatedly by the barking and howling of multiple dogs living up the hill from us. We had left notes, we had left phone messages; the offending pet owner vowed to keep the hounds quiet.

But over and over, he and his family would blithely go off for who knows what entertainment, leaving the canine family outside until the wee hours. Finally, a neighbor down the street had it and took the man to court. The judge said “Fred, you got no alibi; cuz you were somewhere else, your dogs will have to …” no not die, but be quieted. Electric fence, bark collars, or just put the damn things in the house, or take them in the car with you.

Backsliding is often cured with a gentle reminder of what else the judge said, "we don’t want to see you here again, or we will take the dogs away." Tough justice? Maybe, but when you can’t sleep, and you’ve tried all the other neighborly approaches, you may need to fight barking with biting.

Greenhouse Gases and CEQA

2008-12-01T11:03:00.001-08:00

There's a swirling chatter all over the web and in the newsletters of land use law offices. Since 2006, with the passage of AB 32, the California Global Warming Solutions Act of 2006, the effect of this landmark legislation on our State's environmental laws, particularly CEQA (the California Environmental Quality Act) has been the subject of much speculation and, often, frustration.

AB 32 requires the California Air Resources Board to:

· Establish a statewide Greenhouse gas (GHG) emissions cap for 2020, based on 1990 emissions by January 1, 2008.
· Adopt mandatory reporting rules for significant sources of greenhouse gases by
January 1, 2008.
· Adopt a plan by January 1, 2009 indicating how emission reductions will be achieved from
significant GHG sources using regulations, market mechanisms and other actions.
· Adopt regulations by January 1, 2011 to achieve the maximum technologically feasible and
cost-effective reductions in GHGs, including provisions for using both market mechanisms
and alternative compliance mechanisms.
· Convene an Environmental Justice Advisory Committee and an Economic and Technology
Advancement Advisory Committee to advise ARB.
· Ensure public notice and opportunity for comment for all ARB actions.
· Prior to imposing any mandates or authorizing market mechanisms, requires ARB to
evaluate several factors, including but not limited to: impacts on California’s economy, the
environment, and public health; equity between regulated entities; electricity reliability,
conformance with other environmental laws, and to ensure that the rules do not
disproportionately impact low-income communities.
· Adopt a list of discrete, early action measures by July 1, 2007 that can be implemented
before January 1, 2010

Since many of these dates have passed, let's see how much has actually been accomplished.

One of the first things was the passsage of yet more legislation SB 97, which requires the Governor’s Office of Planning and Research (OPR) to create CEQA guidelines to mitigate GHG emissions, including, but not limited to, effects associated with transportation or energy consumption. OPR must prepare these guidelines and transmit them to the Resources Agency by July 1, 2009.

This was supposed to help the confusion over AB 32 and implement some of its requirements. Many towns and Cities and Counties have been scrambling to met the deadlines, and to interpret what that means in terms of CEQA analysis for various projects, including housing, commercial development and transportation projects.

Now we have SB 375 which streamlines CEQA analyses for certain projects like transit oriented development to discourage sprawl and hence global warming impacts. It imposes a regional approach on planning which many enviros have wanted for a long time.

I agree, it's overdue. My questions have to do with issues facing small towns, when large projects are proposed, in fact pushed by the powers that be, read ABAG housing requirements, that threaten the character of he town, and maybe even will have an opposite effect of that desired: to provide more affordable housing in town centers, near transit.

The problem is developers want and demand more housing and the bonuses that go with it, in order to provide the necessary affordable housing. (What a crazy concept; shouldn't ALL housing be affordable?). To me, this is the crux of what's wrong with the way we use land in this country; it sells to the highest bidder (and how well is that working for those of you who spent too much on your own homes?) instead of apportioning the land as needed to serve the community.

The "highest and best" use of land means getting the most $$ out of it, not the most efficient use of resources, not the best way to serve those in need of quality, inexpensive housing.

But I digress with opinion, not information. To read more about these bills and more, go to:

http://eartotheground.typepad.com/weblog/global_warming/ and

http://www.publiclawnews.com/public_law_news/2008/10/sb-375---landma.html

and you will see that the professionals are scratching their heads, just like me.

Green Legal Solutions

2008-09-22T16:47:00.000-07:00

This month, my law office branched out into a new, expanded area of practice, which we are calling Green Legal Solutions. We will still advise homeowners on tree, property and boundary disputes. And help community groups struggle with protecting their environment. But now we will also work with small businesses and good green builders who want to be environmentally friendly, get certified by local or State agencies and be a part of the solution.

I am pleased that over the years this office has helped stop, or get modified, inappropriate, too large, out of scale and just plain wrong development in places like Novato, San Rafael, West Marin, and many other northern California locations.

My law office has helped homeowners fight toxic chemicals in their home, solve nasty disputes with neighbors and their homeowner associations and and preserve neighborhood amenities. We have helped protect both trees and views; provided guidance on fences and easements, drawn up agreements to allow neighbors to live in peace. We look forward to working with more such clients in the future.

Don't forget to tune in to the Len Tillem Show on Sunday, September 28, from 6-7 PM, KGO, 810 on your AM dial. We will discuss these issues and more. If you haven't heard Len before, he is a kick, very savvy, and a great guy to work with on the air.

Listen to Len Tillem Sept. 28

2008-09-17T15:49:00.000-07:00

Finally, we are back on the air. Sunday Sept. 28, from 6-7 PM, KGO radio, AM 810. Len Tillem has asked me back and after a couple of reschedules, we have nailed down the date.

Listen up and call with your tree, easement, boundary or other property issue.

Look forward to talking to you soon.

Jail Time for Trimming Trees in State Park

2008-08-27T10:41:00.001-07:00

This story from the Sonoma Press Democrat reminds of a case I had once where a homeowner trimmed some trees (well he felled them actually) on State Park lands adjacent to his property, as the neighbor had told him it was ok.

He was mortified to find out it was not of and that he may face jail time and a very stiff fine and restititution. My client settled out of court without a trial and no criminal record. It's a shame this guy's lawyer didn't work out a deal to prevent the outcome. Sending a hedge fund manager in front of a jury in these economic times not such a good ploy.

Of course, I do not know all the facts and so cannot really second guess that decision.

Read on:

Jail time for trimming trees in state park
Mendocino County jury convicts SF hedge fund manager of vandalism
By MIKE GENIELLATHE PRESS DEMOCRAT
Published: Wednesday, August 27, 2008 at 4:30 a.m. Last Modified: Wednesday, August 27, 2008 at 3:42 a.m.
UKIAH -- A wealthy San Francisco hedge fund manager faces five days in Mendocino County Jail after being convicted of illegally trimming trees along a popular trail in Van Damme State Park, which adjoins his luxury vacation retreat.
Derek Webb, 49, a benefactor to North Bay land trusts and environmental groups, is scheduled to begin serving the jail time on Oct. 7.
Webb's jail sentence was ordered after a Ukiah jury last Friday convicted the asset manager of a misdemeanor vandalism charge. Superior Court Judge Richard Henderson also ordered Webb to perform 50 hours of community service.
County prosecutors on Tuesday hailed Webb's conviction, saying that it sends a message that a "person's deeds as a public benefactor does not exempt him from the rule of law."
District Attorney Meredith Lintott said state parks representatives pushed for prosecution, and "We thank them for their role in protecting the public's land."
But Webb's attorney, Rod Jones of Mendocino, said Tuesday that the prosecution pronouncements left him "speechless," given that Webb had been convicted of a misdemeanor, not the felony sought by prosecutors. "Were they in the same courtroom?" asked Jones.
He said the jail sentence seems to be a stretch.
"Jurors understood what was at issue, and they didn't see it as a felony crime deserving jail time," said Jones.
Webb couldn't be reached for comment Tuesday, but Jones said his client was deeply disappointed at the outcome, especially the jail sentence.
Webb's conviction stems from an incident in October, 2007 when a state parks official saw him using a chain saw to trim back tree branches along a heavily used trail on the south side of Van Damme park. Webb owns adjoining property, including a landmark coastal farm called Spring Ranch.
Prosecutors said coast parks Supt. Marilyn Murphy was off duty at the time and walking her dogs along the trail when she came upon Webb.
Murphy testified that Webb insisted he was only trying to help the state maintain the trail and that he thought it unnecessary to have to seek permission from the "bureaucracy."
Prosecutors told jurors that Webb seriously harmed the stand of tan oak, coast and Monterey pine trees by trimming them improperly.
Jones said Webb is so dismayed by the local prosecution that he may rethink his involvement in community events.
Since 2006, Webb has hosted dinners and donated stays at his retreat, which features a restored six-bedroom Victorian house dating to the 1860s. Rental fees for a two-night stay ranges up to $1,563, according to the Spring Ranch Web site.
You can reach Staff Writer Mike Geniella at 462-6470 or mgeniella@pressdemocrat.com.

Back on the Radio in September!

2008-08-20T10:24:00.000-07:00

HI all fans of Land Use News. I am happy to report that I am back on the Len Tillem ("I'm a lawyah!") show (KGO, AM 810) on Sunday September 14, 6-7 PM. Listen and call in. I will talk about easements because that's what you all seem to want to hear about. Let me know if you have other pressing concerns.

Also, I am expanding my business with a new name Green Legal Solutions. I will help small businesses with their green legal needs, certification issues and others. I will of course continue to work with individuals on tree and property issues, and with groups on environmental protection, including California Environmental Quality Act issues and more.

Stay tuned.

Dotty

Finally on the Len Tillem Show!

2008-06-11T13:39:00.001-07:00

After two false starts - first I got the flu and had to cancel the morning the show was scheduled, then after I drove to the studio and sat through the first half of the show, the system crashed - finally I got my hour on the Len Tillem Show, about a month ago.

It was great fun, as caller after caller told us about their boundary disputes, tree and fence issues and more. Len is fun to be on the air with and the hour went by quickly. When I got home I had several emails from people who had tuned in. I'm still getting responses.

The best part was Len asked me back in September, so if you missed the show, tune in September 7 at 6 PM (barring technical difficulties of course), or leave your comment on this blog.

See you on the radio!

Land Use News Goes Live!

2008-02-11T08:26:00.000-08:00

Listen up! Land Use News will be going live on the Len Tillem show on KGO radio, Sunday, February 17, from 6-7 PM. If you're within hearing distance, listen and call in. Len is interviewing me on issues of land use and tree law. This is a great radio program generally. Len is a great radio personality and a fount of wisdom. Funny and acerbic with his callers, he always gives them good advice. Tune in, KGO radio, 810 on your AM dial.

If you can't hear the show through the ether, go to http://kgoam810.com/sectional.asp?id=17036

Thanks for reading and listening. Your comments welcome here.

My Husband, the Fire Ecologist in the News

2007-10-26T13:34:00.000-07:00

My husband, fire ecologist and SF Chronicle columnist (Ask an Arborist, 1st Saturday of the month, plug plug) is quoted in this article on fire storms.

Wooded hillsides, narrow roads make Bay Area a 'disaster waiting to happen'
Kevin Fagan, Chronicle Staff Writer

Thursday, October 25, 2007

--------------------------------------------------------------------------------
The right combination of the wrong conditions could create a firestorm in the Bay Area every bit as devastating as the one savaging Southern California, fire experts say - and nowhere is that danger more acute than in sleepy Mill Valley.

There, sprinkled throughout the lushly forested slopes of Mount Tamalpais, lie some of the Bay Area's most expensive houses. The beauty is double-edged: The same verdant slopes that draw the wealthy and the famous also harbor heavy underbrush and trees that have not burned for nearly 80 years. And the narrow, twisting roads that give the town's neighborhoods their charm would turn into death traps with the first wreck during an evacuation.

All that is needed to light up this residential wonderland would be a couple of weeks of hot sun, a strong easterly wind and a spark of some kind, experts say.

With enough bad luck, it could happen next month, after the recent rains dry completely off.

"The fire conditions there and on the mountain in general are absolutely horrendous," said Ray Moritz, a Sausalito-based fire ecologist who advises fire departments all over the Bay Area. "The fuel load (potentially flammable wood) is tremendous. It's a disaster waiting to happen."

The Bay Area's other hot zones of high risk are not far behind.

Similar conditions - houses nestled in thick growth on hillsides with hard-to-negotiate, narrow roads - exist in parts of Contra Costa, Alameda and San Mateo counties. A lot of progress toward standardizing fire hydrant fittings, radio communications and construction requirements has been made all over the Bay Area in the past 15 years, but in those three areas in particular, there is still a lot of catching up to do.

To residents, such areas are just enclaves of fine houses in beautiful wooded settings. Fire experts call them wildland interface zones.

"A lot of the hills areas in Berkeley and Oakland, in and around where that awful 1991 Hills Fire happened, are still at great risk," said Contra Costa County Fire Protection District Chief Keith Richter, who coordinates mutual aid for fire departments from Oregon to Monterey. "On the other side of the hills, in parts of Orinda, Lafayette and Walnut Creek, conditions are also ripe."

He said road widths of at least 22 feet, allowing for fire engine movement even in a jam, have become common in new construction sites. But there are still a lot of old neighborhoods in the East Bay hills where the modern era has not caught up.

"Areas like the little community of Canyon, the south ends of Lafayette and Orinda - those are real hot spots for us," Richter said.

If a blaze began chewing up the dry brush and oaks of Contra Costa badly enough, Richter said, most fleeing residents would be sheltered at schools with fields that could act as firebreaks, such as Stanley Middle School in Lafayette. Concord Pavilion could house thousands in a pinch.

On the other side of the hills, schools like Oakland Technical High School were evacuation points in the 1991 blaze. Oakland's Coliseum could act as a gathering point if things got chaotic enough.

There are those who lived through the 1991 disaster who have no doubt chaos would happen.

"There are quite a few spots where the city hasn't been able to widen the roads, and on the ones that have been improved, we now often have a problem of too many cars," said David Kessler of Oakland, who lost his house in 1991 and heads the North Hills Phoenix Association of fire-conscious residents. He pointed to Charing Cross Road, where six people died in narrow roadways trying to flee the Hills Fire.

"And on Bristol and Buckingham roads, the city has allowed a lot of big houses, and people park where they shouldn't.

"What if someone is holding a big party along one of those roads when a fire breaks out? Nobody will be able to drive past the cars, and we'll have the same disaster we had all those years ago."

Fire ecologist Moritz said the same concerns can be found in the San Mateo County hills around Woodside, though the danger of fatalities is lessened by the sparseness of the population there. Vaca Mountain, east of Napa, is also considered by fire experts a potential tinderbox, though it too, is thinly populated.

But when fire planners gather to ponder how best to gird for the next big blaze, Moritz and his fellows always pull out the map of Mill Valley and its surrounding communities.

The last big fire there was in 1929, and it burned 1,000 acres and 115 homes. Since then, the population of the area and the size and value of the houses have soared.

The worst-case scenario, Moritz said, would involve a major earthquake during high fire season. Considering that the Bay Area is overdue for a major quake by at least a decade, by many seismic estimates, this is not out of the question. The region's most catastrophic quake in modern times, Loma Prieta in 1989, and the most catastrophic fire, 1991's Oakland Hills Fire, both happened in October.

"If you get a big quake and fires break out, it would be impossible to block the advance of the blazes around Mount Tam," Moritz said. "The roads would be blocked or damaged by the quake, services cut off, emergency personnel overwhelmed handling the quake. Very quickly, the fires could get so powerful that dumping retardant on them with helicopters and airplanes would be like spitting on them."

That was the scenario in the 1991 Hills Fire, which turned 2,900 homes to ash and killed 25 people. The same thing happened in Marin County's worst fire, the Mount Vision Fire, in 1995. It roared out of control near Tomales Bay State Park for a week, destroying 12,350 acres, forcing 500 people to evacuate and destroying 45 homes. It's what's happening now in Southern California.

Mill Valley's 13,600 residents are particularly vulnerable to such a fire because the town is situated among canyons and arroyos that would turn into blowtorches in a major blaze. Many of the hillside streets are dead-ends and 4 to 10 feet narrower than the recommended 22-foot width. A skinny roadway means one good stall would put fleeing residents on foot and force fire engines to re-route, wasting valuable time.

"Say the fire begins with an offshore wind," Moritz said, like the one that helped spread the Mount Vision Fire. "It creeps downhill, then it gets pushed by one of our easterly winds, which are Marin County's version of the Santa Ana winds - hot, blowing in from the east and very strong.

"You could have fire burning from the top of the mountain, and from down below, and all those people on foot because the roads were blocked would be trapped in between them."

In a worst-case disaster, every town around Mill Valley would be subjected to flames, and the conflagration would end only when it had burned either to the bay on the east or the ocean on the west. Just counting the bigger towns from Kentfield to Sausalito and over the mountain to Stinson Beach, that means nearly 50,000 people and more than 23,000 homes would be at risk.

Those who live in the danger zone shrug off the nasty possibilities as part of the bargain for getting to live in one of the most desirable areas of the country; Mill Valley's median home price is $1.25 million. Most give at least some thought to preparation. But once you've cleared brush around the house, refitted the roof with fire-retardant shingles and the like, there's not much else to do but hope fate treats you kindly, they say.

"We're very focused on thinning our trees, keeping the roadways clear and cutting our underbrush, but not matter what you do, man takes a gamble when he comes into areas like this that are historically hot and have naturally occurring fire," said Barbara Sykes, 75, who has lived in her shingle-sided, hand-crafted mountain house on a slope overlooking Mill Valley since 1976.

From the sprawling porch at the back side of her home, Sykes has a view all the way to the Bay Bridge. Mill Valley looks like a fairyland of wooded cottages; the homes of rockers Sammy Hagar and Carlos Santana are minutes away.

"I'm a real nature lover," she said Wednesday. "But when that easterly wind starts blowing, I always realize that if a fire happens here, the best we can do is just try to get out of the way."

A few miles up Mount Tamalpais, at the Throckmorton Ridge Fire Station, Marin County Fire Department engineer Don Keylon cast a wary eye on how vigorously the winds were flapping the flags at the station entrance. The wind was blowing about 10 miles per hour, and he didn't like that.

"We regularly take the fuel moisture reading here, and the fuel load right now is at 64 percent," he said. That means the moisture is at 64 percent of normal in the wood.

"Sixty-six percent is what we consider critical, so I'd say we have to be pretty careful right now," Keylon said. He pointed to a wide canyon leading from Mill Valley straight up to his 900-foot-elevation station.

"If a fire comes up through one of the drainages (cuts in the land) down there, it'll be kind of like a chimney," he said.

"Like a blowtorch. Not good."

Past California wildfires
Some of the worst wildfires in California since the 1930s, based on deaths, destruction or acreage burned:

October 2003: Near San Diego; 273,000 acres; 4,847 structures destroyed; 15 deaths. Cause: accidentally started by a hunter. It was among 15 wildfires that killed 22 people, destroyed 3,640 homes and blackened 750,000 acres of Southern California over two weeks.

November 1993: Malibu area of Los Angeles County; 18,000 acres; 323 homes destroyed; three deaths. Cause: arson. It was among more than 20 fires that killed four people, destroyed more than 1,000 homes and consumed 193,814 acres over two weeks.

October 1991: Oakland hills; 1,520 acres; 3,276 homes and apartments destroyed; 25 people killed. Cause: A flying ember from a fire believed to have been contained ignited a tree.

November 1980: San Bernardino Mountain foothills east of Los Angeles; 23,600 acres; 325 homes destroyed; four dead. Cause: arson.

September 1970: San Diego County mountains; 175,425 acres; 382 structures destroyed; six dead. Cause: power lines.

November 1966: Near Angeles National Forest in Los Angeles County; 2,028 acres, 12 firefighters killed; Cause: power line.

November 1961: Los Angeles County; 6,090 acres; 484 homes destroyed; Cause: believed accidental.

July 1953: Glenn County, Northern California; 1,300 acres; 15 firefighters killed. Cause: arson.

October 1933: Los Angeles County; 47 acres; 29 welfare workers clearing brush killed. Cause: undetermined.

July 1929: Mill Valley; 1,000 acres, at least 100 homes lost. Cause: undetermined.

The Associated Press and Chronicle staff

E-mail Kevin Fagan at kfagan@sfchronicle.com.

2007-10-03T16:47:00.000-07:00

Shrubbery dispute leads Anaheim woman, 65, to shoot neighbor, police say

By Dave Mckibben, Los Angeles Times Staff Writer 11:11 AM PDT, October 1, 2007

A landscaping dispute on a quiet Anaheim Hills street turned violent Sunday afternoon when a 65-year-old woman shot her neighbor in the shoulder and then barricaded herself in her house before surrendering, authorities said. Police said the argument began about 3 p.m. when Anita Spriggs apparently started trimming the hedges of a fence she shared with her next-door neighbor, 64-year-old Gary Hall.
"Spriggs then grabbed a handgun and shot the victim in the shoulder," said Sgt. Rick Martinez of the Anaheim Police Department. "We're not sure where she got the gun."
"Neighborhood disputes are not unusual," Martinez said. "But for it to elevate to this, especially on a quiet Sunday afternoon in a quiet neighborhood, is rare."Hall was taken to Western Medical Center-Santa Ana with non-life-threatening injuries. Raylene Hall, his wife, said Sunday's altercation was not the first her husband has had with Spriggs. "This has happened many, many times before," she said.Raylene Hall said this morning that her husband is still in the hospital.
"The bullet went through his shoulder and shattered it," she said. After the shooting, Spriggs went back into her house. About a dozen officers blocked off the street and evacuated surrounding neighbors on East Greensboro Lane. Over the next 90 minutes, police tried to persuade Spriggs to come out with a bullhorn and by phone. She surrendered just before a SWAT team arrived.
Spriggs was booked into Orange County Jail on suspicion of attempted murder.dave.mckibben@latimes.com

My Lost Blog

2007-09-14T11:18:00.000-07:00

Bizarrely, this Blog vanished and reappeared as an Indian Blog. Now after complaining to Google, I've got my Blog back, sort of.

They stuck a 0 into the url and left my old Blog title with the Indians.

This can only confuse my loyal readers; I hope youa re finding me with the 0 (zero) and will continue reading.

I am truly in the dark as to how this happened. If any of my readers have a clue, let me in on it.

Thanks.

Dotty

EcoSpeakers

2007-05-11T11:10:00.000-07:00

I'm pleased to let you all know that both Ray Moritz (the popular San Francisco Chronicle "Ask an Arborist" columnist and, not incidentally, my husband) and I have both joined the team of EcoSpeakers on the subject of the Greening the Urban Environment. The EcoSpeakers homepage is at http://www.ecospeakers.com This is a great organization which provides speakers on many environmental issues.

Ray will talk mostly about his work in urban forestry, helping home owners and public agencies with tree issues. He's also a fire ecologist, so much of his work is in that area. As a "forensic forestor," Ray works with attorneys on legal cases involving trees, including wildland fire, tree hazards and liability issues. He's also a very entertaining speaker.

We are pleased to join the likes of L. Hunter Lovins, Paul Ehrlich, Huey Johnson, Betsty Rosenberg and others who are members of EcoSpeakers.

You can also check out Ray's column on the first Saturday of the month in the SF Chronicle Home section or at sfgate.com http://www.sfgate.com/cgi-bin/qws/ff/qr?term=%22ask+an+Arborist%22&Submit=S&st=s or click on the Ask an Arborist link above.

In other news, I am pleased that this Blog is generating interest and I have been fielding calls from all over the state! Thanks for reading Land Use News. Your comments are most welcome.

Dotty
coastlaw@earthlink.net

More on the Baffling Boundary Trees

2006-10-17T08:01:00.000-07:00

or LOOK BEFORE YOU LOP!

A commenter writes that a tree overhanging her dock was causing a concern it might fall and damage the dock. She had trimmed overhanging branches before, and the neighbor had never complainted. So she thought since the tree leaned her way, if was ok to cut it down.

Whoops! The neighbor has now taken her to Small Claims court, where the damage limit is up to $7500.

What should she do? She thinks the trunk might actually have been on the property line; if so, she may be liable for only half the value of the tree, since she would be responsible for half its upkeep. If it was truly in danger of falling and causing damage, its value would be lower and its hazard potenial higher. Too bad she didn't have it assessed by a consulting arborist before taking matters into her own hands.

Nevertheless, it is not too late for her to get expert advise. She can still have a consulting arborist assess the situation. Does she have photos of the tree before she cut it down? Is there any wood left that can be evaluated for disease or other stressers that may have devalued the tree?

Another step may be to have a survey done to determine if it was truly on the property line. All of these things can be costly however, so she may want to negotiate with the neighbor over the value of the tree and cost to replace with one that won't overhang her dock.

The moral of this story might be summed up as "Look before you Lop." In the long run, you can save time, money and your relationship with your neighbor if you get all the facts and are willing to work things out first.

PROPOSITION 90 IS WOLF IN SHEEP’S CLOTHING

2006-09-15T16:19:00.000-07:00

Eminent Domain Reform Bill really “Taxpayer Deception” Bill

No one wants their family home or small business uprooted so that some developer or mega corporation can move in. Nor does this happen very often. But to hear the carping of the proponents of Proposition 90, the so called “Protect our Homes” initiative, this is a daily occurrence that must be diligently guarded against.

Not so. To be sure, there are abuses. Last year’s Kelo case in New London Connecticut, in which the Supreme Court upheld the Town’s use of eminent domain, the power of a governmental agency to take private property for public benefit, to take modest single family homes for the purpose of putting in a pharmaceutical factory under the rationale that the local economy would get a much needed boost, being the most famous.

We can find some right here in the Bay area. The once culturally diverse and thriving Fillmore District was transformed into the Western Addition with many a politician’s pocket lined in the process. The popular Marin City Flea Market is now the site of a dreary and underutilized shopping mall. And in Oakland, small auto repair and tire shops are scheduled to be replaced by more upscale retail operations. All to boost economic development under the government’s redevelopment powers.

If our legislature had acted in the wake of Kelo and passed its own laws, modifying the definition of blight and defining what is and what is not a public benefit, we might not see Proposition 90 on the ballot this November. But it didn’t act, and so the vacuum was filled by an eager band of property rights advocates headed by New York developer Howard Rich. Rich and his friends are stumping all over this nation with their “reform” message. And fearful homeowners are falling for it, often to their dismay, when the true costs of “reform” are revealed.

Think we’ve got problems now? If Proposition 90 goes into effect, no neighborhood, family farm or community will be safe from developers keen to squeeze every cent out of every square foot of property they can get their hands on.

Just ask our neighbors to the north. Oregon’s Measure 37, passed in 2004 as eminent domain reform, has resulted in the wholesale gutting of what were once the strictest environmental protections and sound planning practices in the nation.

Besides requiring that no private property be taken for purely economic benefit, Proposition 90 contains the following clause:

“Except when taken to protect public health and safety, ‘damage’ to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the down zoning of private property, the elimination of any access to private property, and limitations on the use of private air space. ‘Government action’ shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.”

This clause allows any landowner to sue any governmental agency for any action which they claim devalues their land. This would include such mainstays of good planning as downzoning, restricting the use of airspace and zoning that prohibits mining or other environmentally dangerous activities. This means that laws restricting heights of buildings to preserve sunlight or views or to maintain historic character may be fair game under this law, according to the California Legislative Analyst’s office.

And the law is not limited to real estate but could apply to any “property” including liquor licenses (so there go laws restricting liquor stores near schools), your good name as a consumer (those lists maintained by your utility and credit card companies are property after all) and a myriad of other intangibles not generally considered property under standard land use laws.

In Oregon, which used to have some of the strongest environmental protections and smart growth practices in the nation, Measure 37 has threatened to cost taxpayers millions in lawsuits against regulations that property owners claim devalue their property. The result has been that local agencies, strapped for the cash to defend these regulations, have caved in to developers allowing massive residential and commercial developments, including mining operations, where strict regulations previously protected the environment and the residents of the State.

These measures trot out sympathetic faces to advertise their benefits, the farmer whose land was taken for development, the tire store operator whose shop was replaced with a shopping mall, the grandmother whose lifelong home was seized so that a drug company could relocate there. No one doubts there are abuses of redevelopment and eminent domain laws. But Proposition 90 is not the answer. So far it has been opposed by major environmental groups, the League of Women Voters, League of California Cities and many major newspapers.

But then so was Oregon’s Measure 37. It still passed owing to the false and misleading propaganda those who favor it blast out on the airwaves. Major players besides Mr. Rich and his band of merry developers are the Republican Party and the Libertarian Cato Institute. Big development money is expected to hide its ugly mug behind sad faces of displaced homeowners or actors portraying them.

You know the drill: “I never though this could happen in America. The government came and took my family home, the one my grandfather built with his own two hands. And they’re putting up a giant paper mill that will pollute our river. They say it’s for jobs and economic benefit of our community. I say it’s big government run amok. We need Proposition 90 to protect our homes.”

Ok, I invented that ad myself, but you get the drift. The developers and big business will too, so expect those kinds of ads to play this fall. The irony is, Proposition 90 is actually going to make it easier for the polluting paper companies to build in our State if we don’t stop this wolf in sheep’s clothing in November.

Dotty E. LeMieux

Dotty E. LeMieux is a land use lawyer and political consultant in Marin County. She can be reached at coastlaw@earthlink.net

A version of this article appeared in the Marin Independent Journal on 9/14/06

TROUBLE ON THE BORDER

2006-08-22T14:25:00.000-07:00

By Dotty E. LeMieux

No this isn’t about immigration or the Israeli-Palestine question. The border is closer to home and one that affects all of us as homeowners.

It’s the boundary line between you and your neighbors, and it has been scene of as many pitted battles as any international border between warring states.

Simple as ivy on the wall or water under the fence, or complex as dual ownership of boundary trees or uncertainty over where the property line really is, these spats can turn into deadly feuds, reminiscent of the legendary Hatfields and McCoys of West Virginia and Eastern Kentucky Hill Country.

Although neighbor battles don’t usually result in bloodshed, they can be lethal for trees, shrubs and other vegetation, as many hapless property owners have learned.

“The Fruit of the Poison Tree”

Any one who has experience with Criminal Law knows that expression coined to cover information gathered in an illegal search or seizure. In the context of neighbor disputes, it can often be quite literal. Neighbors have been known to spike trees whose overhanging limbs dropped debris into their yard with herbicides, to sprinkle poison over fences to kill neighbors’ prized azaleas and even to lob strychnine laced hamburger to quiet a barking dog.

These acts are all illegal, and can result in severe penalties, possibly even criminal sanctions.

More common are the cases of lethal wounds to encroaching roots or overhanging limbs. If your neighbor’s tree is overhanging your property or its roots pushing through the fence and surfacing under your garden walk, there are measures you can take, short of murder.

Root and branches may be trimmed to the property line so long as the trimming does not damage the structural integrity of the tree. You need a trained professional to assess this. Do it yourselfers should proceed with caution.

As I always advise my clients, talk to the neighbors first; they may not be aware that their beloved pine tree is driving you crazy with windfall and pine needles.

Trees that Straddle the Fence

A situation that sometimes occurs is that of trees whose trunks are on both sides of the property line. These are known as boundary trees and pose unique problems, since each neighbor is mutually responsibly for their care and upkeep, and responsible for any liabilities.

Problems arise when neighbors disagree about the care of a boundary tree. When one neighbor’s view is blocked by a rapidly growing tree, while the other values the privacy the tree provides, an impasse is often the result. Neither neighbor can take unilateral action. If a tree is diseased and threatening to fall on one neighbor’s house and the other neighbor refuses to have it removed, the first neighbor may be forced to sue the other for his half of the cost.

Get a good appraisal of the health of the tree and cost to remediate the problem or remove the tree. Think about panting replacements that you and the neighbor both choose. If you go in with well developed information and a plan to keep a good relationship with your neighbor, chances are he will be more amenable to your desires, especially if you offer to pay more than your half of the cost.

The Case of the Missing Boundary Line

You buy an older house in a nice neighborhood with the help of a reputable realtor. You have your deed, the description of your land and the 1942 subdivision map. You decide to repair the sagging wire fence on the property line with a nice redwood plank one. You start putting up your fence posts, only to be greeted with a shout of protest from your neighbor. What’s happening? He just had a survey done to determine the setback so he could enlarge his home, and guess what? What you thought was the property line, wasn’t.

“But” you sputter, “My realtor said this fence marked the property line.” Thought is the operative word. Unless you have a survey of your own showing conclusively that the fence does mark the line, you may be out of luck. The lesson? Don’t rely on out of date subdivision maps. Make sure you know just where your property starts and ends, on the ground, not on a map.

Wandering Cats, Dogs and Vegetation

Your neighbor’s overgrown Tom cat Fluffy has taken to stalking your own Foo Foo, who likes to preen herself in the sun, but now is forced to take refuge in the house whenever that mean old Fluffy comes prowling around. And he doesn’t just say hello either; he caterwauls and leaves messy calling cards. You complain to your neighbor and demand he do something about his wayward pet. But he ignores you, shocked that anyone would consider his precious Fluffy less than loveable.

Meanwhile, the neighbors on the other side leave their home under the protection of Spike, a yappy little teacup sized dog whose constant shrilling is driving you to drink.

Not only that, the Ivy they planted as an easy to maintain border is now enveloping your side of the fence, threatening to strangle the wisteria and honeysuckle you’ve been cultivating.

What is a hapless homeowner to do? First check your town’s cat and dog ordinances. Many Towns and Counties have ordinances restricting the number of cats or dogs that may be kept, noise and nuisance ordinances. There are also ordinances providing sanctions for “dangerous” dogs. And mediation is always an option. The County of Marin has a pet mediator, just for these occasions. There is not, to my knowledge, any plant mediator, but maybe there ought to be.

The ivy can be cut back by you to the fence line and if all of these problems persist, consult an attorney specializing in neighbor law or check with the excellent Nolo Press book of the same title. (Go to www.nolo.com to see about ordering it and other excellent self-help legal guides.)

A Note about Noise

Neighbors and noise go together like picnics and ants, summer and sunburns. Unless you live a long way out in the country miles from the nearest human habitation, you’re going to get noise pollution. Chain saws, weed whackers, children’s parties, loud stereos and barking dogs come with suburban life.

But there’s no reason to suffer in silence. Again, talk to the noise neighbors, nicely. Keep your voice low so they’ll get the message. And if they don’t, there are laws that regulate the noise level in neighborhoods.

An example of noises to be avoided is contained in the San Rafael Municipal Code, section 8.13.030 (Loud or unusual noises prohibited):

“No person shall maintain, emit or make, or cause, suffer or permit to be maintained, emitted or made, any noise or sound produced by human, animal, mechanical or other means, which by reason of its raucous or nerve-wracking nature, shall disturb the peace or comfort or be injurious to the health of any person or person”

That just about says it all. Wracked nerves, disturbed peace and neighbor issues generally are the stuff of local law enforcement daily life. Just read the sheriff’s calls in small town papers like the Pt. Reyes Light and you’ll see that you are not alone win having Troubles on the Border.

Dotty E. LeMieux is an attorney specializing in tree, neighbor and environmental law in San Rafael. She may be reached at coastlaw@earthlink.com

Published in Marinscope papers, real estate section, August, 2006

Practical Politics

2006-08-08T13:13:00.000-07:00

PRACTICAL POLITICS CLASS NEARS

As many of you know, besides practicing land use law, I work as a political consultant. Sometimes these two roles go hand in hand. Anyone who's been involved in an environmental battle can tell you that.

So in case any of you are interested in the practical side of politics, check out my class at the College of Marin Saturday September 16, 2006, from 10-4 PM. Anyone running for office, thinking of running for office or working with a campaign are especially invited to join us.

We will, as always, go over some basics for activists, that can be used in campaigns or in your neighborhood battles.

Email me with any questions: del@greendogcampaigns.com

PRACTICAL POLITICS

How YOU can be an Activist for Your Community

"All politics is local" -Tip O'Neill

Dotty LeMieux’s community activist training class will be held at the College of Marin, Saturday September 16, from 10 AM to 4 PM. Learn how to be a more effective activist for your cause.

Environmental: Are you reviewing an EIR for a project in your neighborhood, fighting big box retail or struggling to preserve wetlands?

Social: Would you like your local government to be more responsive to community needs in the areas of affordable housing, transit or other pressing neighborhood issues?

Political: Have you thought about running for office yourself or working for a candidate or ballot measure to make changes in your community?
This training may be just what you’re looking for. Meet like minded people and hear their stories. Gain new allies and learn new techniques in working for your cause or candidate Topics include:

• Telling our stories, campaigns won and lost, what you are doing now in your community!
• Frame that issue: How to get your message just right
• Tracking the elusive volunteers
• Getting the Press to pay attention
• Creating effective materials to carry your message to the streets, City Hall or Washington
• Finding likely and unlikely allies. Learn why "The enemy of my enemy is my Friend."
• Yes, you CAN raise money! Tips to help you get over your fear.
• Planning your next steps; An activist's work is never done!

Successful students of past classes have won elected office offices, led citizen petition drives and become effective at getting their message across in public hearings and in the press.

It would be helpful, but not required, if students read George Lakoff’s Don’t think of an Elephant before the class. Binders with class material provided to each student.

Yes, you CAN make a difference!

Go to http://marincommunityed.org/regist/resources/index.htm

to register

WHOSE FENCE IS IT?

2006-07-25T14:06:00.000-07:00

From time to time, we will print enlightening articles by others on topics of interest to property owners and land use practitioners. This is from a nice little real estate newsletter out of Oakland. The writer kindly interviewed me following a reading of the Blog.

Enjoy:

Whose Fence Is It?
By Bruce Linde

Copyright 2006 The Grubb Co (www.grubbco.com). All rights reserved. Reprinted with permission.

The news is rife with stories of border disputes and their ramifications. You might be tempted to say ‘not in my backyard,’ but you might find you have your own border war if you don’t know exactly where your property lines are.

Americans spend more than $1.6 billion per year on fences. California Civil Code §841.2 requires that “coterminous owners are mutually bound equally to maintain the fences between them”… but it’s not that simple. According to Nolo Press’ Fences FAQ, “Unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other’s permission.”

It is defining boundary lines that is the sticking point. Boundary-line issues can be readily identified if a buyer obtains a survey of the property before the purchase, but many buyers are unwilling to do so because of the cost ($800 to $1,500 or more). “If a fence is truly on the property line, it’s a shared fence,” says Attorney Dotty LeMieux. “We all assume the fence is the property line, but that isn’t always the case. The only way to know for sure is to do a survey.” Besides showing property lines, a survey will also show the location of pools, decks, fences and anything else that has been added to the property… including structures built without the required permits (and inspections) that regulate their size, height, and location. To further highlight the complexities of this issue, an arbitrator in Berkeley recently ruled that although a homeowner’s land had moved, a survey determined ownership – and several feet of disputed earth now belonged to the downhill neighbor; there is no state law specifically designed to address property-line disputes where the ground is slowly moving, impacting property lines.

Nevertheless, if the deed or plat (map) of your property is confusing, you and your neighbor can simply agree that a fence – existing, or one you build – marks the boundary. This is called an “agreed boundary,” and certain requirements must be met: the line must be uncertain, both neighbors must agree that the fence is the line, and both neighbors must then treat the fence as the property boundary for a period of time. Once these requirements are fulfilled, the fence becomes the legal boundary line on the ground. Such an agreement should be in writing and recorded with the county in case there are any future questions about the boundary.

Even without an explicit agreement, when two neighbors treat a fence as a boundary fence for a long period of time – for example, if both contribute to its maintenance for many years – it can become the legal boundary. A fence on an agreed boundary is subject to all the laws that affect any boundary fence; when one of the properties is sold, the fence remains the boundary, and the new landowner buys mutual ownership of it along with the property.

So what happens when neighbors can’t agree? Good neighbors communicate, resolving problems to their mutual benefit without resort to the legal system. Mediation is also an option. Your first step, though, should be to talk to your neighbor, share perspectives, and see if you can come up with an equitable solution. The bottom line, according to LeMieux, is that “it’s best to be on good terms with your neighbors, and know where your property lines are.”

Please call with comments or questions about this article, or for referrals to qualified surveyors and fencing contractors. Thanks to Dotty LeMieux, who can be reached at coastlaw@earthlink.net.

Boundary Trees Revisited

2006-07-11T12:21:00.000-07:00

Tina writes:

You say "both share the cost of its upkeep or liability for its lack of upkeep, in proportion to how much of the trunk is on whose side of the line", but the 2006 edition of Nolo's _Neighbor Law_ says that in California the tree is %50 your neighbor's, even if only a little bit of the trunk is on his property. If the tree was originally only on your property, then the trunk grew to where it was also on your neighbor's property, your neighbor becomes co-owner.

So I'm a little confused here--proportional, or 50%?

Curious (and yes, I do have a tree problem),
Tina

Dear Tina,

Well, as in the law generally, there are two (or more) sides to every issue. The law is ambiguous, so the sides are fuzzy too, like a shaggy barked Eucalyptus. I hope it's not a Eucalyptus coming between you and your neighbor. There are no hard and fast rules. You are both responsible, true, and neither can remove or damage the tree without permission of the other. You may however, trim the branches on your side of the line, so long as you do not damage the structural integrity of the tree.

The reason these problems are not so commonly written about today is 1) most of these issues came up in the days when farmers planted windbreaks to protect the crops along their boundary lines and 2) many people today use the services of a trained mediator to resolve disputes.

That is what I would suggest if you are having a problem with a boundary tree. Your town or County may have a mediation service for just such disputes. If not, you and the neighbor need to agree to hire someone and split the costs.

I wish you good luck with your tree and if you need further advice, consult your local Bar Association for the name of a good tree lawyer in your area.

Dotty LeMieux

The Public Trust Doctrine: Venerable and Besieged

2006-01-09T15:33:00.000-08:00

This essay was first published on On The Commons (http://onthecommons.org)

Dotty E. LeMieux

“By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations.”

The quote above is from the Justinian Code of 530 AD, on what has become known as the Public Trust Doctrine in jurisprudence. Justinian, the sage Roman Emperor who gave us much of what we now think of as “common law, had more to say on the subject:

“The seashore extends as far as the greatest winter flood runs up.” He wasn’t through yet: “The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.”
As one can imagine, the conflicts between those in the cottages and drying sheds along the shore and the rest of the public wanting to gather “cockles and mussels, alive alive oh” in the same area grew nastier and more complex as development increased and seashore living became a luxury for the leisure classes, instead of a necessity for the fisher folk.

Public Trust lands are strictly speaking the lands under the oceans and other waterways and are held in trust by the state for the people as a whole. They cannot be bought or sold, except in rare situations where the public trust itself will be benefited.

Enter the Courts

The seminal case which established the scope of this doctrine in the U.S. is Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892). The State of Illinois wanted to grant the entire Chicago waterfront to Illinois Central Railroad. The United States Supreme Court determined that Illinois held title to these lands in trust for the public. They could only convey title to other entities id that conveyance would actually improve the public’s rights. This was not the case with the Railroad’s plans for the land, and the State prevailed.

In 1988 the Supreme Court expanded this doctrine by holding that the principles underlying it applied to all water influenced by the ocean’s tide, regardless of whether it was navigable or part of a navigable body of water in the case of Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).

Early California case law and legislation determined that the public trust lands along the seashore extended to the “mean high tide” mark, and that landowners could own the land under the trust waters, they could not keep the public off it, or impede the public’s use of those lands up to the mean high tide. As late as the early 1970’s, litigants were wrangling over the definitions of these lands:

“Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes.” (Marks v. Whitney, 1971, 6 Cal. 3d 251, 259.)

This case also recognized that an important use of the tidelands was “the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” (Ibid. at 259, 260.)

So it’s not just all navigation and fishing rights as it was defined in the old days. In California, the State is ultimate arbiter of whether the Public trust lands are serving their public trust purpose. This has led to a collision of competing water interests, when land owners or public agencies with the right to appropriate water from navigable waterways, including rivers, streams and lakes have locked horns with environmentalists.

The most celebrated case on this issue may be the Mono Lake diversion. In the case of Mono Lake, the Los Angeles Department of Public Works asserted their rights to the waters of tributaries to the Lake for the purpose of supplying the vast metropolitan L.A. basin. These tributaries were not themselves “navigable” waters, but supplied the Lake. Diminishment of their capacity was soon felt on the Lake itself, which was in danger of being drained with resultant loss in habitat and wildlife dependent on it. By 1979, the Lake had sunk 43 feet and diminished in size from 83 to 60 miles. Salinity levels were rising leading to changes in migratory bird patterns.

This was by far the most expansive use of appropriative water rights, and continued unabated for years. The damage to the Lake was impossible to ignore however, and environmentalists brought suit to stop the practice.

The California Supreme Court clarified existing law that protection of the environment was a reasonable use, and that the appropriative use did not take precedent over that environmental protection. National Audubon Society v. Superior Court Alpine County (1983, 33 Cal.3d 419).

The Ebb and Flow of Water Rights

Today, we see threats to our Public Trust doctrine under attack in the attempted sales of water rights to private contractors. Private entrepreneurs are attempting to buy “excess water” from California rivers to transport in giant water bags to sell to places in need of more water. This year, popular mystery writer, Marcia Muller, used a water grab in the fictitious town of Cape Perdido in one of her thrillers The “waterbaggers” as the locals called them, were forced to fold their bags and go home after a series of unfortunate events revealed them to be more than simply greedy. A good read, based in fact.

The question arises, what is “excess water?” where the public trust is concerned. Can there be such a thing? An even trickier question is how to treat ground water, that water lying under ground, hidden from the public eye, but often feeding local water wells essential to human and agricultural consumption?

Traditionally, the public trust relates to navigable waterways only. In Mono Lake, the doctrine was found to extend to instances when diversion from a tributary to a navigable waterway damages that water, in that case, Mono Lake.

Ground water, that body of water lying under the ground, in springs for instance, is not so protected. Although ground and surface water are interconnected, there is no permit process for the use of ground water the way there is for surface water.

Consequently, it is often treated like a commodity, to be bought and sold. If you drink water out of a plastic bottle, chances are it comes from a groundwater source and it may be having a devastating effect on the environment.

Case in point: Recently the Nestle Corporation entered into a contract with the water agency in McCloud to sell ground water for bottling. Locals sued and the court ruled this spring that they needed to do an environmental impact report before entering into the contract. So the project is on hold for now. However, resolution of the issue of whether this use will impinge upon the public trust will have to wait for another day.

This is an ever-evolving area of the law and public policy. Many third world countries are now obliged to buy their own water from private corporations. In fact, the World Bank encourages privatization as an answer to dwindling water resources. NAFTA and the WTO consider water as a “good” and failure to treat it as such by signatory countries can result in trade sanctions. This is a devastating development as water resources are literally drying up in many places on the globe.

The commons are in trouble, not only in the third world but here at home. The City of Atlanta turned to water privatization as a way out of a failing public system. Only recently did the City take back control of its own water supplies. If the Atlanta experience is any indicator, people in this country are not willing to have the public trust sold to the highest bidder. Not yet anyway.

A Walk on the Beach

Earlier this summer, two state Supreme courts issued landmark ruling upholding the Public trust doctrine to shoreline areas. The Michigan Supreme Court’s ruling overturned seventy years of appellate court decisions in favor of private property rights over the public’s access to shoreline. In that case, the justices found that the public’s right to beachfront access extended to the “ordinary high water line,” not just to the actual water itself.

A similar outcome resulted from a case in New Jersey in which a private club tried to limit public access to the Beach. There, the court found that the public’s rights to enjoy the beachfront to the mean high tide did not depend on that line being under water, as contended by the property owners.

Property rights advocates are in a tizzy over these rulings, and urging the US Supreme court to overturn them.

In California, our rights to walk on the beach are still protected to the mean high tide line, whether on wet or dry ground. Here, the issue is mostly over access to the beach, with fierce battles being waged by property owners in tony beachfront communities like Malibu, not wanting the great unwashed to pass their multimillion dollar investment homes on the way to the public beaches.

In Seadrift, at Stinson Beach, property owners, in an attempt to stem the rising tide of storm washed seawater, built rock bulkheads without benefit of permits in the early 1990’s. After a long court battle with the Coastal Commission, the State caved into the owners’ demands and agreed to limit the public access. Frightened homeowners were terrified at the specter of scruffy beachgoers standing atop their seawall for a look at how the other half lives. Or so they claimed.

A group of citizens (represented by volunteer attorneys, the author of this piece among them) brought their own suit claiming an “implied dedication” to the entire beach, meaning the public had used the beach for so many years as if it were a public beach, that dedication for public use could be implied. This case, Citizens for Open Access to Sand and Tide, was heartbreakingly dismissed on the eve of trial for lack of standing. The court found that the earlier Coastal Commission settlement determined the public’s rights and no one else was allowed to sue to protect them. (See Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053)

Beach goers and their legal teams are avidly watching the two newly decided cases opening up access in Michigan and New Jersey (as well as a similar case working its way through the Washington State court system) with a certain amount of trepidation. Will a more conservative property rights oriented United State Supreme Court reverse the Michigan and New Jersey cases , and if so, what is the implication for California and the other states which already had a more expansive view of the Public Trust doctrine? That is the question on everyone’s minds.

________________________________

Dotty E. LeMieux is an environmental attorney in Marin County California, working on land use issues in the public interest. You can read her updates on her blog at www.landusenews.blogspot.com.

WHEN TREES COME BETWEEN NEIGHBORS - The peculiar predicament of the “boundary tree”

2005-12-21T13:34:00.000-08:00

"A fool does not see the same trees a wise man sees." Rick Hilles

Good Trees Good Neighbors Make?

You and your neighbor have a big Cypress tree growing on the boundary line between your two properties. The tree has been there since long before you moved in. Your neighbor said it was planted about 50 years ago by the man who originally subdivided the property, Old Mr. McPherson. It’s never given you any trouble over the years, but lately it’s begun to look a little scraggly. Small branches are dropping out of it and it looks like it could really use a haircut.

Something nasty and brown is oozing out of on your side too. Your arborist tells you the tree is senescent, which means older in tree years than Old Mr. McPherson must be in people years by now. He also says you might want to have it removed, because it really isn’t going to get better and it might even start dropping larger branches or fall over altogether right on your roof. “Notice how it’s leaning,” he says. Now that he mentions it you do and rush to call your neighbor to help pay for its removal.

Since the tree is on the boundary, you assume the neighbor will have to pay half the cost of its removal and planting some more suitable variety. But unexpectedly, he balks, pointing out that most of the tree’s trunk has grown on your side of the property. Besides, it’ll fall on your house, not his, so he doesn’t see why he should have to pay for it. Does he?

In California, the rule is that when two owners share a tree, both share the cost of its upkeep or liability for its lack of upkeep, in proportion to how much of the trunk is on whose side of the line, which is not always easy to determine. (If the trunk is wholly on one side, even if the tree leans or the branches hang over on the other side, the tree is said to belong to the owner of the property on which the trunk stands.) Neither owner may do anything to damage the other owner’s interest in the tree.

If there’s a dispute about who owns the tree, a survey may be the answer. See if the neighbor will share the cost. It’s always a good idea to know where your property line is in any event. A lot of our subdivisions were laid out before modern survey techniques became commonplace, and the old landmarks have been destroyed, sometimes cut down or paved over.

In this case, the tree is clearly a nuisance and poses a hazard. Since it is partly growing on the neighbor’s land, I would ask him to contribute to its removal. The fact that it’s leaning over your house and not his doesn’t shield him from any liability. In fact, if it falls and damages your property, he will be at least partially responsible. Point this out to him politely over a neighborly cup of tea or glass of Chardonnay, to make the cost more bearable.

Fruit of the Boundary Tree

Suppose your boundary tree is a nice big McIntosh Apple or Bartlett Pear? Or hung with bright persimmons? Assuming you share the trunk of the tree, the fruit hanging over each owner’s line would be the property of that owner. If the tree trunk is entirely on one property, however, it wouldn’t strictly be a boundary tree and the fruit would be the property of the owner on whose side the trunk is growing.

If the overhanging branches themselves become a problem, you would have the right, under common and California law, to trim the branches back to the property line. The question arises, what about the fruit? Surprisingly, you do NOT have the right to the fruit, even if the branches hang over your yard. Technically, you’d have to pay for the fruit, if you cut back the branches. At least I think you would. I have not found any reported California cases on this subject, such disputes being more the product of rival orchards in the 1800’s than neighbors of today.

So, it’s unlikely the neighbor will sue you over a few apples. But it’s better to keep on good relations with one’s neighbors. So ask permission first. You’ll probably get it and you can make apple pies for both.

If you can’t resolve these or other property related problem with a neighbor, consider going to mediation. The County has a low cost mediation service and many towns operate their own. A qualified arborist can give you an evaluation of the health of the tree and if all else fails, talk to an attorney experienced in tree and property matters.

Dotty E. LeMieux

Dotty E. LeMieux is an attorney specializing in tree and land use issues. You can reach her at coastlaw@earthlink.net You can also read her articles at www.landusenews.blogspot.com

The Nettlesome Nuisance

2005-10-21T16:31:00.000-07:00

WHEN A NUISANCE IS MORE THAN A PAIN IN THE NECK

“Barking dogs and crowing hens often come to bad ends” Old saying

The Problem

Your neighbor’s son is starting a rock band in his garage. He’s put egg cartons on the ceiling and old blankets on the walls, to muffle the sound, but it’s still ear piercingly loud at 1 o’clock in the morning.

Another neighbor is fixing old cars in his driveway for fun and profit, causing unpleasant smells to waft through the air and gooey substances to puddle in the street, sometimes oozing into your well tended front yard.

And next door, the man with the prize winning azaleas is spraying untended irrigation water over the fence causing rivulets to undermine your own drought resistant garden.

These, along with barking dogs, tree roots surfacing in your yard, loud parties and other aggravations to your peace of mind, are classic nuisances.

What is a Nuisance?

Anything that interferes with your use and enjoyment of your property is called a nuisance. In legal speak: “ Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (California Civil Code, section 3479.)

Nuisances can be either public or private.

California law states: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Private nuisances affect only one property owner, and are the typical cases we see where one neighbor takes on another.” (Civil Code section 3480.) All other nuisances are private.

Public nuisances affect general public, by unreasonably interfering with the public health, safety, peace, or well being. Toxic waste, dangerous activities and the like are examples of public nuisances.

Some activities that look like nuisances may be permitted activity. The San Rafael Rock Quarry which blasts neighbors out of bed in the early hours has been the subject of much controversy and many lawsuits over the years. To the neighbors, it’s a nuisance and then some. In these cases, the issues revolve around whether the operation is in violation of its permits or whether circumstances have so change that the permitted activity is no longer a beneficial one.

But changed circumstances don’t always mean annoying activities are now nuisances. Because of the proliferation of residential development in farming areas, and the recognition of the importance of agriculture to the state economy, the Legislature has officially proclaimed that agricultural operations which were in existence prior to residential development cannot be considered a nuisance due to changed circumstances. (See California Civil Code section “Prior Agricultural Activity Not Nuisance.”)

It’s usually the garden variety nuisance that plagues the average neighborhood, barking dogs, loud motorcycles, debris from nearby trees.

What can you do?

After you’ve politely approached the neighbor and asked him to curb his son’s enthusiasm, or move his car repair activity to a more appropriate location, and the nuisance persists, what can a law abiding citizen do? Many towns have procedures for dealing with certain types of nuisances, for instance interference with views are addressed through local procedures in towns such as Belvedere, Tiburon and Corte Madera. Other towns have their own specific tree ordinances.

If none of these apply to your case, you might ask the neighbor to go to mediation. Marin County has a low cost mediation services and even specialists in the barking dog problem. Both parties have to be willing to take this route, however.

There may be local or state regulations that apply. Most jurisdictions have ordinances, prohibiting loud or incessant noises, especially late at night. In the case of the car repair activity, most towns forbid such work in residential areas, without a use permit and allowing motor oil and other substances to escape into the street and possibly the storm drains is definitely prohibited and can result in a hefty fine if not criminal prosecution.

If you are personally affected in more specific way than the general public, you may have a cause of action for a public nuisance. For instance, the oil that seeps onto your property causes specific damages. Otherwise, you can go the Town, County or other agency to abate the nuisance.

If mediation doesn’t work, and there is no recourse through a public agency, you should consult a land use attorney to find out what your best options are. Sometimes an attorney can help you negotiate with the neighbor involved. The attorney can also help you determine whether the nuisance is a permanent or continuing one. (A permanent nuisance is one that is complete at the time of its occurrence, and is governed by a three years statute of limitations. A continuing one is one that is ongoing or repeated and may be abated at any time.)

Before you resort to costly legal action, consider appealing to the neighbor’s interest in maintaining good relations in the neighborhood. You may be surprised that when the problem is brought to the offending party’s attention, it can be resolved amicably.

Dotty E. LeMieux. Dotty E. LeMieux practices tree, land use and environmental law in Marin County and may be reached at coastlaw@earthlink.net.

TIMBER TRESPASS

2005-08-18T16:15:00.000-07:00

The assault

For the past several years you’ve enjoyed the privacy and comfort of your large pine trees on the edges of your property. They keep your yard cool in summer and screen the neighbors’ pool.

Then one day you return from a hard day at work to find your beloved trees massacred. Their branches hacked to within an inch of their life, the trees are skeletal remains of themselves.

You think you can see the neighbors peeking around the corner of their newly exposed house, grinning slyly.

What has happened?

All too often neighbors have vastly different opinions about the trees that separate their lots. To you, the pines were a sheltering green zone, providing a sense of tranquility and home to birds. To the neighbors, they were messy nuisances that shaded their garden and dropped unsightly debris on their lawn. They may even have considered them a view obstruction or fire hazard.

One day, the neighbors had enough. Someone had told them they could trim on their side of the property line, so they hired the Chop and Drop Tree Co. to come over and do just that.

Unfortunately, Chop and Drop got carried away and started hacking on your side of the line. Your beautiful trees are now a mess.

Worse yet, your neighbors never even consulted with you. You would have agreed to a little reasonable thinning for their garden’s sake.

But now you are angry. What should you do?

What could have been amicably resolved between good neighbors has turned into an ugly feud. The neighbors have committed what’s known as “timber trespass” or “trespass cutting of amenity trees.”

The law

Contrary to what it sounds like, “Timber Trespass” isn’t when a member of Earth First takes up residence in an endangered redwood tree in the middle of an old growth forest. It’s any time someone crosses onto the property or air space of another, and causes damages to their trees.

If your neighbor goes on to your property and removes vegetation there, it’s a timber trespass. Trees have value, monetary and non-monetary. These can include aesthetic, architectural, energy conservation and wildlife habitat.. They provide shade, privacy and a sense of emotional well being to the people who tend them and appreciate their beauty and the natural setting they offer. The trees can also provide critical slope stability and erosion control.

To lose your tree can be a devastating loss.

That’s why the laws in California and many other states provide stiff penalties for the unlawful removal or damage of another’s trees. Iin most cases you can even recover two or even three times the actual loss, and even, in certain circumstances, emotional distress damages.

The law provides that for the intentional injury to “timber, trees, or underwood upon the land of another, or removal thereof,” the damages to be awarded are three times the actual value of the loss. Where the wrongful cutting is unintentional or negligent, “the measure of damages shall be twice the sum as would compensate for the actual detriment…” (California Civil Code section 3345: Wrongful Injuries to Timber, Trees or Underwood.)

In fact, courts have found that because of people’s special relationship to their trees, this is one of the unusual situations when you may be able to recover for emotional distress for a purely property damage claim. In an early case on this subject, the California Supreme Court stated that once you establish that a trespass or nuisance has occurred, “an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom." (Herzog v. Grosso (1953) 41 Cal.2d 219, 225) A more recent case stated it this way: “Mental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment.” (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 287-288, quoting Sturges v. Charles L. Harney, Inc. 165 Cal.App.2d 306, 323.)

The remedy

If this happens to you, make sure you document the loss immediately, contact a consulting arborist who can evaluate the monetary damages, and call your insurance company. It helps if you have both “before” and “after” photos to support your claim. Immediately photograph the damage and write down an accurate timeline of events. The arborist will use a number of factors in evaluating your loss, including species, size, health, location of the tree on your property and its importance for privacy, shade, wind screen or other values particular to your property.

A good land use attorney experienced in tree law can help you determine the best course of action.

If your neighbors have been complaining about your trees, it’s always best to try to work it out informally or through mediation before things escalate to a full bore timber war. It pays to keep track of your trees health, their effect on neighboring properties, how fast they are growing and other factors that can come between even the best of neighbors. In fact, courts have found that homeowners have a “duty to inspect” their trees and property. Ignorance is not an excuse.

In the case of mature trees on your land, an ounce of prevention can be worth a ton of cure.

Dotty E. LeMieux

Printed in the Marin Scope papers, August 15, 2005

Tree Law in the News

2005-08-12T09:37:00.000-07:00

Below is an article hot off the presses, by Marin's own Beth Ashley, a wonderful reporter, columnist and activist. Notice just about everybody she talks to in the article is a woman. Yeah! Moi included. Yes, this is what I do for a living, along with the environmental law/action and campaign consulting. To me, it all goes together.

Note that the "consulting arborist" identifed as my husband, is Ray Moritz, and he's the one who advised Drake High School not to cut down that grand old Redwood tree to make way for the astroturf. My husband - A hero to students and trees alike!

Enjoy the read:

Beth Ashley: Power can be rooted in the oddest places

Beth Ashley

Marin Independent Journal 8/10/05

SUDDENLY, I have more power than I suspected.

Larkspur officials informed me recently that the homeowner four houses away in my Greenbrae neighborhood wants to cut down a palm tree in his yard. Would that be OK with me?

Well, duh. I thought anyone who owned a tree had an absolute right to cut it down.
Silly me.

It turns out many Marin towns and the county itself have rigid rules on trees and their fates. And people like you and me have power over certain trees in someone else's yard.

I can object to my neighbor's cutting down his palm because it is a "heritage tree," so large that it has a privileged life of its own.

Recently, when a landlord in a Mill Valley neighborhood wanted to cut down an old oak in his front yard, he had to inform the city first, and the city informed the neighbors, and several of them protested. They liked the tree and wanted it to stay.

A hearing was held, and - because the tree is certifiably sick and in danger of falling - permission to cut it was granted.

Attorney Dottie LeMieux, who specializes in land use and property rights, and who is married to a "consulting arborist," knows tree regulations like the back of her hand.

- Tiburon, she says, has the toughest tree ordinance in the county.

- Several towns protect some trees as heritage trees - so designated by their size and age and sometimes by species. An oak, for instance, is usually considered a treasure - hands off! Mill Valley protects oaks, madrones, redwoods or Douglas firs of a certain diameter. But according to city parks official Ron Misurrace, "It's OK to cut down a bay, pine or cypress, as long as it's on private property."

- Some trees, considered a nuisance, aren't protected at all. Most cities and the county would be delighted if you cut down a eucalyptus, and some towns - Corte Madera, for instance - forbid the planting of nuisance trees like eucalyptus, Monterey cypress, juniper, acacia and Lombardy poplar.

Trees can be the source of bitter neighbor-to-neighbor feuds. "A tree is part of a man's home," says county mediation services chief Barbara Kob, "and a man's home is his castle."

All kinds of issues arise: your tree is blocking my sunshine; the roots of your tree are buckling my sidewalk.

One of the biggest sources of neighbor disputes arises when one guy's tree blocks the other guy's view.

Tiburon, Belvedere, Sausalito and Corte Madera have view preservation ordinances - you had better not let your trees grow tall enough to cut off your neighbor's view of the bay, the bridges, the hills or, in Belvedere, even cut off his access to sunlight.

Ellie Bloch, a veteran mediator for the county, says disputes over views, next to divorces, are the most challenging to mediate.

"People covet their views and think the view is their right. But there are many perceptions of what is a view. We're dealing with people's feelings. It's hard to describe."

Bloch,who lives in the county area of Tiburon, says she trims her trees to accommodate her neighbor. "By law, I don't have to do it, but they asked me to do it, so I do. Many, many people do the same."

Others, however, end up in mediation or in court.

"Some people want privacy from a neighbor, so they plant trees for a sound barrier, a wind break, or to fence their property off from their neighbor's," Bloch says. "One neighbor might not mind, but when a new person moves in and wants more view, they often end up in a fight."

Tree disputes are often not about trees, LeMieux says; "they're about neighbors who don't like each other."

Sometimes neighbors do "awful things" to one another's trees, she says. "They'll put poison at the base of the tree, or cut down a tree because it was bothering them and then say it was a hazard."

Sometimes neighbors talk, but often resort to "self-help," she says.
LeMieux warns that the last thing you should do is to take matters into your own hands. If you do, lawsuits may await. People will sue if you trespass on their property (and sometimes win triple damages). They'll sue if you trim a tree that leans over your fence. Sometimes the courts even allow damages for "emotional distress" over modifications to their trees.

Trees: the new family pets!

LeMieux had a case in which neighbors squabbled over a line of trees close to the property line. "My clients loved these trees, which provided shade, beauty, privacy. But they came home one day and found their neighbors cutting them down. They called the police."

Accusations flew back and forth that were "way beyond trees," she says. The offenders "paid a fair amount" to settle the case.

Tree disputes are usually lightning rods for other issues, says Barri Bonapart, a tree law specialist in Sausalito. "There's usually some other offense that's bothering them - like, you did not invite them to your daughter's wedding."

Tree disputes between neighbors "are almost worse than family law," Bonapart says, "because in a divorce, at least, one of the parties moves out."

Some towns have tree committees that try to come up with solutions. If the problem is about a view, the tree owner may be required to "make a see-through window" in his trees. Some cities set up long-term monitoring situations, so the views are constantly preserved. Sometimes, when a tree has to be removed to accommodate new construction, cities will require planting a new tree.

Trees, according to the founder of Marin Releaf, a 15-year-old San Rafael-based organization, are essential to human health: they purify the air we breathe.

Sandra Sellinger and her volunteers are pushing for an agency that would take care of the street trees that were once planted curbside by cities but which now seem to fall on property owners to maintain.

Over the years, Marin Releaf has planted trees where trees were needed - in parks and school yards, at China Camp and at the Marinwood-St. Vincent's interchange.

Even when the trees aren't their own, some Marinites take their presence personally. When Dominican University cut down 42 eucalyptus trees - eucalyptus trees! - on Grand Avenue in 1999, the outcry was so great that the city fined the university and demanded that new trees be planted.

Last year, when officials at Sir Francis Drake High School planned to remove a 100-year-old redwood tree to renovate an athletic field, students raised such a ruckus the school board reversed itself.

Trees have been important in Marin for at least the last century. The venerable Outdoor Art Club in Mill Valley and the now-defunct San Rafael Improvement Club both were early planters and protectors of trees.

In the 1950s, a maiden lady named Georgia Wintringham made San Rafael trees her special bailiwick, ever on the lookout for sick trees and doing whatever she could to encourage tree planting.

How much do we value our trees?

Recently, Bonapart had a client who contended that a neighbor cut the roots of his 90-foot tree, damaging it so much it had to be removed. The case was settled for $40,000.

GRASSROOTS POLITICS FOR CITIZEN ENVIRONMENTAL ACTIONS

2005-06-15T12:07:00.000-07:00

THE POLITICS OF LAW; THE LAW OF POLITICS

What You Need to Know When Developers Come to Call:

You have just learned that a developer has submitted plans for a 1200 unit development on the old dairy farm. You’re outraged that a neighborhood greenbelt will now be covered with Mc Mansions. You worry about traffic impacts and the fate of the historic oak trees that cover the property.

Is there anything you and your neighbors can do?

You might call your County Supervisor. You might write letters to the editor or chain yourself to a fence in front of the site. You might bring in the Ruckus Society to lead a protest march. Or hire a pit bull attorney to sue everyone in sight.

You might simply tear your hair out in frustration.

Or you could bring on board a seasoned land use lawyer who is also versed in grassroots political action and lobbying techniques. Someone who can draft an effective legal response to an Environmental Impact Report (EIR) and represent you and your neighbors before the Planning Commission. Someone who can also help your group organize, build support for the cause and let the local politicians know you mean business.

A Mutli-modal Approach to Environmental Problems:

You’ve heard the term multi-modal in the context of technology and transit planning. But it applies just as well in the community environmental arena. Let me explain.

Community groups shouldn’t have to reinvent the wheel every time a developer or big box retailer comes calling. A multi-modal approach using law and political action can provide you time proven techniques to help you win your environmental battles.

Over the years, I have learned techniques for working with neighborhoods and community groups beyond legal representation. My practice has grown as a result into three distinctive realms:

1) Public Interest Law: representing citizen and environmental groups in public hearings, reviewing and commenting on EIR’s and litigating environmental cases; advising clients in First Amendment petition rights and election law; drafting initiatives and referenda.

2) Campaign Consulting for Candidates and Issues: strategic campaign planning, reviewing issues and crafting a message for voters and ensuring the message is delivered effectively

3) Activist Training: providing the tools necessary for your group to influence public opinion, lobby elected officials and wage an effective campaign for your cause

In the context of a community environmental issue, these three realms all contribute to a successful outcome. Having someone who understands both the law and the politics involved early on in the process is crucial.

Using a multi-modal approach allows you to tackle the issues of strategic planning, coalition building and fundraising while addressing the fine legal points in the environmental review process. Lobbying officials and “speaking truth to power” are also crucial in waging a battle that will affect your community and quality of life.

Remember, an environmental legal battle IS a political campaign.

The Advantages of Multi-modal Environmental Action:

Using a multi-modal approach can avoid unnecessary litigation by involving an experienced land use attorney who is also skilled in campaign and lobbying techniques. In this way, you magnify your clout and make the decision-makers sit up and take notice of your cause. In preventing a planned doubling of San Quentin Prison, an ad hoc group deposited thousands of signatures on the desk of the President of the Board of Supervisors demanding the EIR be reopened for failure to properly notice the local community (a legal position).

The result was a withdrawal of County support, which caused the State to abandon its plans altogether (a political outcome). Using grassroots techniques to take the message to both the public and the decision-makers avoided costly litigation.

This approach also offers opportunity for collaboration between grassroots activists and legal professionals to strengthen the position of both. A successful lawsuit to stop local jail construction led to a successful campaign to preserve the land from future construction in Marin County.

Citizens used a lobbying and public relations campaign to piggyback on their legal arguments to derail piecemeal construction of cell phone towers in rural Mendocino County.

In McCloud, California, a successful lawsuit challenging the legality of a contract with the giant Nestle Corporation for sale of water rights dovetailed with Citizen action to keep the project in the public’s eyes and wage a strong grass roots campaign.

This office has been working with community groups, training activists and waging legal battles for more than 15 years. Many of the candidates I have helped elect have come from these environmental campaigns. When environmental and community activists run for office, the effects of this work are far reaching and very rewarding for all concernmed.

Dotty E. LeMieux

Dotty E. LeMieux practices public interest environmental, land use and election law in Mill Valley, California, along with advising candidates for elected office. She offers activist trainings for citizen groups and teaches “Practical Politics” through the College of Marin Community Education program. You may reach her at coastlaw@earthlink.net

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT EASEMENTS

2005-06-10T16:48:00.000-07:00

EASEMENTS ARE TRICKY BUSINESS FOR UNWARY PROPERY OWNERS

Derived from the Old French aisement, ‘convenience or accommodation’

Don’t Block that Easement!

Often the first time an easement becomes an issue for a property owner is when he finds it blocked in some way. Have you always used the narrow driveway that runs alongside your neighbor’s property to get to and from your own home? It’s likely what you have is an easement over a portion of his property. Looked at your deed lately? Occasionally, the owner of the property over which the easement runs will encroach into it, sometimes in all innocence. If the easement isn’t regularly used, or only a portion of it is used, the property owner may think it has been abandoned or isn’t needed.

Most easements homeowners deal with have to do with getting into and out of landlocked property. Say you buy a piece of land on the side of a beautiful hill in somewhere like Nicasio, but there’s no access road to the property. How do you get to the land? Where do you build your road? These are questions you need answers to before planning your dream house. Besides the cost of building a hillside driveway, you will probably need to obtain an easement across the downhill neighbor’s property. This kind of easement is often created at the time of subdivision, but if you are buying land that is not part of an existing subdivision, there may not be an easement in place.

You need to find out if the neighbor will grant you as easement for ingress and egress and if so, what will it cost you?

Often easements are reserved from property carved out of a larger lot, to allow the original owner or those coming after him access to their land. Make sure you know if land you buy has an easement on it for back lot neighbors.

No one may unreasonably interfere with the purpose for which an easement has been created. That means you can’t put up a locked gate across the driveway your neighbor uses to access his home. Nor can you build a fence so far into the easement that it blocks the way or creates a hazard.

The question that faces courts when these disputes escalate into litigation is what is reasonable? Is it reasonable to put a fence two feet into the easement but not three? Is an easily opened gate across the drive ok, if it serves the function of keeping livestock in?
Often these disputes arise because no one knows exactly where the easement is located. Or it appears to have been abandoned because it’s rarely used or not used for its intended purpose. A new road may now provide access and the old easement may no longer be needed.

Is an Easement Forever?

Some easements are hard to get rid of. If you notice there’s one in your deed, and no one’s been using it for years, don’t stop there. If you have questions about whether it’s ok to block off a long overgrown roadway, or move your garden into the easement way, you better consult an attorney first. If the neighbor objects, you could find yourself in court while a judge and jury sort out the property issues.

Even if the easement hasn’t been used for years, it doesn’t automatically revert to your use. Even if they start using it for another purpose altogether, so long as that purpose is not result in “a physical change that permanently and materially prevented [the easement holder] from using the easement or made his use of the easement severely burdensome….” The easement will not be extinguished. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754.) In fact, even after twenty years of disuse, the easement holder may be able to reclaim the easement by filing a “late notice of intent to preserve easement” pursuant to California Civil Code section 887.070.

Overburdening the Easement

An easement may have been created for one use and now be used for another. For instance, what was once a wagon trail used to alfalfa to a head of cattle that is now long gone may now see several hundred car trips per day as new owners of the now subdivided land pass through your property.

Courts will evaluate the issue of whether a change in use of an easement is consistent with the purpose for which it was created. Does the use by the subdivision homeowners comport with the earlier use by the farmer to carry food to his cattle? If the change in use is one of degree instead of kind, the easement will be allowed to continue.

This change “includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden …. (Wall v. Rudolph (1961) 198 Cal.App.2d 684.) In the case of a farm being subdivided, the court will look to the reasonableness and forseeability of the new use.

If the new owners continue to use the easement for long enough, they may acquire a right to continue using it through prescription, or it may even be seen as a public right of way.

Conservation Easements

Often jurisdictions require conservation easements when granting a conditional use permit for agricultural land. These can either be public or private easements. Lucas Film property was created out of historic dairy ranches and contains many thousands of acres of agricultural land preserved in private easements as well as miles of public access trails as part of its deal with the county for development on the north side of Lucas Valley Road, just west of Big Rock.

The Marin Agricultural land Trust acquires easements from West Marin farmers to ensure the land stays in agriculture. To date more than 32,000 acres or one quarter of all Marin’s agricultural land has been protected in this way.

The Marin County Open Space District holds easements more than another 2500 acres.

If you have questions about an easement of your own that your deed description or parcel map can’t answer, consider consulting a land use or real estate attorney for help unraveling the problem.

Dotty E. LeMieux is a land use, tree and property law attorney in Mill Valley and can be reached at coastlaw@earthlink.net. A version of this story appeared in the Marinscope newspapers in Marin County, California.

PROPERTY LINES

2005-05-25T13:15:00.000-07:00

SOMETIMES A FENCE IS JUST A FENCE

I once had a client who had lived in his home for more than 20 years. One day he awoke to find the side neighbor building a fence ten feet over onto his property!

“What are you doing?” shouted my client, let’s call him Sam. “Well, Sam,” said the neighbor, “I’m putting a fence on the property line. I had a survey done and guess what; you’re ten feet over on my side of the line.” Sure enough there were surveyor’s stakes in the ground marking the line of the new fence.

Sam was outraged, and after jumping up and down a few times, called me.

Sam showed me his parcel map, and pointed indignantly to where the neighbor had put the fence. On his side of the line. Or so he insisted.

Sam was wrong. Why?

Sam made the simple mistake many homeowners make – he relied on a long standing fenceline along the side of his yard, one put up some 30 years before he bought the property. His realtor and the seller both assumed the fenceline was the property line. So did the former owner of the property beside him. Sam pointed to his deed and the not very accurate parcel map from the County Recorder’s office, the one that was created in nineteen ought eight when the land was first subdivided, as further evidence that his property was where he thought it was. What stumped him was my pointing out that nowhere on that parcel map was a fenceline depicted. Nothing, in other words, confirmed the old fence was on the property line.

In the nearly 100 years between the creation of the subdivision and the present time, uses changed, fences shifted, shrubbery grew and people laid out boundaries based on someone else’s faded memories.

Is Sam plumb out of luck? Well, that depends. Here are some ways Sam may yet get to keep the property he’s considered his all these years.

AGREED BOUNDARIES

Sam may have an agreed boundary line he can point to for his claim that the ten feet are rightfully his.

An agreed boundary is one agreed upon in years past to settle a difference or dispute over the true location of the property line. If there is an existing fence along what Sam thinks is the property line, it may that the previous neighbors had this same dispute years ago, and agreed that the boundary line would be where Sam thinks it is

He would need to show some past uncertainty as to where the line was and an agreement between the (then) owners of both sides that the fence was to be used as the property line. Sam wins if he can convince a court that this is the case.

If indeed the fence has existed and been used for some fifty years or more as the property line, that fact in itself may be enough evidence to show the agreement needed to prove the case.

Sam may need to track down previous owners, or their heirs, to make his case in court.

ADVERSE POSSESSION

If Sam can show he has used the property as if it were his own in an “open and notorious” manner, and that he has have paid the property taxes on it continuously for five years, he may be able to claim under adverse possession.

The payment of property taxes is the tricky part here. Chances are, if the neighbor’s survey is actually correct (and Sam should certainly have his own done, just to be sure), then it’s not likely he’s been paying taxes on the disputed portion.

However, if he can show everything but payment of the property taxes, he may have a good argument that he has acquired an easement over that portion of the property.

LOT LINE ADJUSTMENT

Does Sam’s neighbor really need the extra few feet? Or would he rather have an extra few bucks and give Sam a lot line adjustment. A lot line adjustment is a modification of a boundary line between two or more legal parcels. Sam will need to apply for this procedure through his local Planning Department, pay a fee and have a new legal description prepared. He also needs his neighbor’s written agreement to present his application.

Sam may also get his neighbor to let him use the property, or split the difference to avoid a protracted legal battle. Sam could obtain a “license” for use from the neighbor for this purpose.

If this happens to you, talk to your neighbor first. Find out what his needs are; then, if you can’t work it out amicably between you, a good real property attorney can advise you of your options.

Dotty E. LeMieux

Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County and can be reached at coastlaw@earthlink.net. (A version of this story first appeared in the Marin Scope Newspapers)

SELF HELP - A TRAP FOR THE UNWARY

2005-05-16T13:13:00.000-07:00

TREES AND THE LAW: NEIGHBORS BEWARE!

Imagine you wake up one morning to find the neighbor’s tree has moved closer to your house. No, it didn’t get up and walk over the property line, but that limb you’ve been concerned about has sagged in the night, and now looks really menacing as it looms over your rooftop.

Is it ok to take a chain saw to it before it falls on your house?

The answer is not as simple as you might think.

Evolving Law

The California law on this issue has evolved over the years as cases interpret the statutes in place. Early common law granted a landowner absolute right over his property to the center of the earth and the sky. However, the advent of airplanes had a tempering effect on that idea. Similarly, early case law dealing with trees suggested that you had an absolute right to remove limbs from your neighbor’s tree if they encroached on your land.

Later cases clarified the issue to apply a rule of reasonableness. Does the overhanging limb poses a threat to your property? If so, you must consider the damage your actions will have on the tree itself. The long and short of it is that you may cut the overhanging limb (or even trim back encroaching tree roots) but you must do so in a way that does not damage the underlying structural integrity of the tree.

The tree owner is ultimately responsible for damage caused by his tree if he has reason to know it is a hazard. And don’t think ignorance is bliss. A property owner has a duty of care to maintain his property so as not to create a nuisance for others. If you have put your neighbor on notice that the tree poses a danger (and it may take the town arborist or a private tree service to evaluate the tree and issue a report), and he takes no action and the limb falls, he is responsible for the damage caused.

Even without an arborist’s report, the property owner is supposed to exercise reasonable diligence in the maintenance of his trees so they don’t become nuisances to others. What this reasonable diligence consists of is the stuff of all these court cases we’ve been discussing. In California, there really is no “Act of God” defense.

Don't Litigate - Mediate

Before you hire your own expert, however, try talking with your neighbor about your concerns. Perhaps he is unaware of the danger his tree poses, or hasn’t noticed the messy debris it’s been dropping all over your nice lawn, and he’ll agree to take better care of it. Maybe you and he can share the cost of the upkeep. If the tree is on the boundary line, that is, part of the trunk grows on either side of the property line, you may be jointly responsible for its upkeep.

You might also contact a local mediation service or consult with your city or County for local ordinances that might help you get some relief. Many cities have codes protecting certain species of trees as “Heritage” trees. These vary widely; some towns consider only the size of the tree. Others specify which trees are to be protected. For those trees, a permit to remove the tree is required unless an emergency is declared by a public official.

In Oakland, protected trees are “On any property, Quercus agrifolia (California or Coast Live Oak) measuring four inches dbh (diameter at breast height (four feet) or larger, and any other tree measuring nine inches dbh or larger except Eucalyptus and Pinus radiata (Monterey Pine).” (Oakland Municipal Code section 12.36.020.) Strict permitting requirements exist for removing any of these protected trees and even the non-protected trees are regulated in development situations or on City owned property.

Other towns permit emergency cutting without official permission, but be sure you check first. If it’s a problem with solar access or views, each community has its own set of rules governing those issues as well.

Crossing the Line

One thing you must never do is go onto the neighbor’s property without permission to take action on a tree problem. That’s more than self-help, it’s timber trespass and you may well find yourself liable for triple the cost of the damage to the trees. If the dispute is over views, shade or annoying leaves on the ground, your position will particularly untenable. Because people have a special relationship with their trees, the courts sometimes even allow for the recovery of emotional distress, if the damage done was egregious. If you clear cut your neighbor’s oak forest to create a view for yourself, don’t look for sympathy from a jury.

Trees can pose a thorny thicket or a shady shelter, depending on your vantage point. Remember the poet’s adage: “Good fences make good neighbors.” The same can hold for trees.

Dotty E. LeMieux

Dotty E. LeMieux practices tree and other aspects of property, environmental and neighbor law in the Bay Area, and can be reached for consultation at coastlaw@earthlink.net.

Land Use News Launch

2005-05-11T13:20:00.000-07:00

Welcome to the Land Use News!

This is an informative site for news about land use issues for attorneys and lay people alike.

I will post articles I write and publish elsewhere and info on interesting cases.

If you'd like to post, feel free to add to Comments.

Here is the first article, initially published in the Marin Scope Newspapers:

WHEN YOU CAN'T SEE THE FOREST FOR THE TREES - Literally

"Every body does not see alike.... The tree which moves some to tears of joy
is in the Eyes of others only a Green thing that stands in the way." (from
The Complete Writings of William Blake (1957) p. 793.)

Homeowners have a love-hate relationship with trees.

We all appreciate the sheltering arms of our own well tended amenity trees; we nurture Heritage Oaks and cherish our prized Japanese Maple.

But what do we do when our neighbor's trees become a nuisance, blocking views of
distant hills, ocean or forests?

Trees are living organisms. They can grow to be unwieldy straggly things that drop
their branches all over, threaten to fall on unsuspecting bystanders, or plop their
bulk squarely in your viewshed.

If you are like many Bay Area homeowners graced with hillside or coastal living,
you probably know just what I'm talking about. Your view of the ocean, never more
than a precious triangle to begin with, may now all but obscured by some runaway
Eucalyptus trees two streets over.

Your view of the peak of Mt. Tamalpais is shrinking behind scruffy delinquent pines
on the lower slopes. You bought your Lake Tahoe home for the view of the silvery
water edged with softening pine trees along the shore, but now that view has been
commandeered by renegade Cypress who have no business in the neighborhood in the
first place.

What's a law-abiding homeowner to do? Here are a few potential remedies for the
most common view versus tree problems.

Can the Trees be Considered a "Spite Fence?"

California law recognizes that a "fence or other structure in the nature of
a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained
for the purpose of annoying the owner or occupant of adjoining property is a private
nuisance." (From California Civil Code Section 841.4 - Maliciously Erected
Fences)

Courts have decided that a row of trees if planted for the purpose of annoying the
neighbors can be considered a structure for purposes of enforcing this statute.
Such a structure is commonly known as a "spite fence."

Spite fences reached a height of notoriety when in the 1870's, Charles Crocker wanted
to buy a whole city block on Nob Hill to build his mansion. One neighbor refused
to sell. Crocker simply bought all the land around the holdout landowner and
built a 40 feet high fence, surrounding the property. No laws protected the hapless
property owner in those days, and he eventually caved in and sold to Crocker.

In a recent case in the town of Yreka, the Third District Court of Appeal said yes,
a row of trees planted to block a neighbor's view could be seen as a spite fence
and be deemed illegal. (See Wilson v. Handley (2002) 97 Cal.App.3d 1301.)

If your dispute gets to a court, the intent of the neighbor planting the trees becomes an issue. If a court determines that the purpose of the planting is to mark the boundary line and to annoy the neighbors, then the court could reasonably conclude that the trees "unnecessarily" exceed 10 feet in height.

Is there a view Ordinance in Your Town?

Many towns have ordinances setting forth standards for maintaining views. There
is no general California law about views. Some towns cherish certain trees such
as Redwoods and have strict guidelines for their removal or even trimming, while
others see them as nuisances, interfering with neighbors' views of Bay or hillsides.

In Marin County, the Town of Tiburon leads the way with the most protective ordinance.

It provides in part:

"The Town recognizes that certain types of trees, because of potential breakage
and fire hazards, or their potential for creating view blockage due to rapid growth
and tall height at maturity, should be prohibited from being planted without special
permission. These trees are referred to as 'undesirable trees.'"

You need to check with your town planning department to see what the rules are.
They are often posted on line. In those cases where view ordinances exist, there
is often a "tree committee" who you can appeal to; don't forget that many
towns and counties have mediation boards whose services are available for a nominal
fee, before you get into a full bore hearing, hiring attorneys and ending years
of peaceful coexistence with your neighbors.

Covenants, Conditions and Restrictions

Are you in a planned development with a set of covenants, conditions and restrictions
that control what homeowners can and can't do with their trees in terms of obstructing
neighbors' views? If so, you may be able to get your neighbor to trim his trees
to restore your lost view. Check with your homeowners' association to see what the
process is in your particular development.

By consulting skilled arborists, you can often set up a plan for "windowing"
the offending trees, so that the neighbor keeps his privacy and shade, while you
get your view back. If no ordinance or cc&r's cover your situation, offer to
pay for professional trimming to restore your view. Even if you do have an ordinance
in play, consider working cooperatively with the neighbor first, before resorting
to hearings or the courts. The cost will be small to maintain cordial relations
and enjoy your view at the same time. Invite the neighbor over to enjoy the view
with you over a glass of wine or cup of coffee as a thank you.

copyright Dotty E. LeMieux

Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County, California, and can be reached at coastlaw@earthlink.net.