More on Tree and Views

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

Or else what?  Or else go to court.

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

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

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

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

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

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

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

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

Why Tree Dispute Mediation might be Right for You and Your Trees!

Many of you know I have added to my law practice a Tree Dispute Mediation service with my husband, Ray Moritz, an expert consulting arborist/urban forester. Ray has participated in hundreds of mediations around trees, views, hazard issues, wildland fire and the like.  I have training in transactional analysis (it helps, let me tell you), and mediation in standard and environmental settings.  Together we can help save people time, costs and headaches by using mediation with a neutral scientific expert with no bias toward either side.  Resolve your issues by learning what's best for the environment and your relationship with the neighbors.  Here
s an article on the subject.

Pass it on:

The problem:

Two neighbors are at an impasse over one of the neighbors trees that the other neighbor finds unsightly, scary and messy.  The first neighbor, call him Neighbor A, refuses to hear anything the other neighbor, Neighbor B, says about his trees. He planted them twenty years ago for privacy and shade and they are doing the job.  If they drop limbs on Neighbor B’s property, he can just pick them up and consider it free firewood. 

And no, he will not consider cutting down these trees and planting something shorter, cleaner and neater, even if Neighbor B offers to pay half. 

What to do?  If Neighbor B truly feels Neighbor A’s trees are a hazard (the limbs they drop are huge and he fears for the well being of his dog, his kids, his wife and himself) or even just a nuisance (he’s tired of picking up debris and having half his yard in shade), he may well hire an attorney and write Neighbor A a threatening letter. If Neighbor A ignores it, the two may find themselves in court, with costly attorneys and experts and staring at a long, grueling legal battle that will ensure there is never any good will between these two neighbors again. One may even end up moving away just to avoid the “despot” next door.

Fears and accusations of harassment, name calling, hang up phone calls, even tree damage or poisoning may well ensue.

The solution:

How to avoid all this?

Try mediation first, before you resort to legal action.  But not just any mediation.  Because even in mediation, positions can harden and experts can argue, until an impasse forces the parties into court anyway.

Try Tree Dispute Resolution with an experienced neutral tree expert, who works side by side with a neutral attorney mediator. 

Litigation is costly, especially if each side is forced to hire attorneys and experts, pay court fees, attend endless depositions and fill out countless paperwork.  Try mediation instead. We work with you to solve the thorny problems that come between neighbors, their trees and their views.  We help you deal with hazard trees and nuisances.  What is unique to our service is a trained neutral consulting arborist provides expert assistance in finding the right solution for your situation.  Our goal is to keep trees and relationships healthy and thriving.  

Here is what one lawyer said about the use of neutral experts in mediation:

The expert is jointly hired by both sides and the cost is shared equally by both sides. The expert’s role is to openly provide independent, neutral expert information and analysis to both side and more so, to the process as a whole. The non-aligned expert becomes a mutual asset and a resource for all parties in developing options for settlement.

                                                                                                                                     

Shared costs. Shared usage. Heightened value. The joint use of a neutral, independent expert is a beautiful thing: The client pays less money and gets more value. And the experts find it liberating and freeing, allowing them to do their best work. (Michael Zeytoonian, http://www.disputeresolutioncounsel.com/2009/06/using-neutral-experts-in-mediation/#more-81)

Take your tree dispute to mediation instead of court.  Use trained, experienced neutrals, including a consulting arborist/urban forester with more than twenty five years experience helping people with the same issues facing you now.  Share the cost of having an attorney-mediator and neutral expert serve you, and help solve those thorny problems.

Save time, save money, save your relationship with the neighbors.

Try mediation first.

Ruling stops Walmart from circumventing Environmental Laws

 Very good ruling for the environment.  Keep watching this one:

Ruling is win for environmental law, loss for Wal-Mart

Retailer using petition drives to get stores approved, skirt environmental review

By Will Evans on November 19, 2012 - 12:01 a.m. PST

 

Getty Images/Joe Raedle

A state appellate court has dealt a blow to Wal-Mart’s strategy of using petition drives to push through approval of new superstores while avoiding California’s environmental law. In a cookie-cutter pattern documented by California Watch, sister site of The Bay Citizen, the mega-retailer bankrolled local signature-gathering efforts to build superstores or repeal restrictions on big-box stores in five California cities last year, including Milpitas. Once 15 percent of local voters signed the petitions, city councils had to either approve the projects or hold a special election, which can be costly. Wal-Mart then urged cities to approve the petition rather than send it to voters, angering some officials who felt bullied.
Wal-Mart has said the strategy is necessary to avoid politically motivated lawsuits under the California Environmental Quality Act. 

Voter-approved ballot measures that stem from petitions are exempt from environmental review and protected from CEQA lawsuits. Wal-Mart argued that when a city approves one of its petitions without an election, the project would be protected, too.
But in a strongly worded opinion, a three-judge appellate panel ruled late last month that the landmark environmental law still applies.

“The legal issue is important and calls for speedy resolution,” the opinion stated. “Developers’ strategy of obtaining project approvals without environmental review and without elections threatens both to defeat CEQA’s important statutory objectives and to subvert the constitutional goals of the initiative process.”

The Fresno-based 5th District Court of Appeal disagreed with a 2004 ruling by a different appellate court, setting up the possibility that the issue will ultimately be resolved by the California Supreme Court.

The Fresno court held that a petition signed by 15 percent of a city's voters doesn't carry the same power as a majority-approved ballot initiative. "To hold otherwise would authorize rule by a few – the antithesis of democracy," it said.
The case centers on a Wal-Mart expansion project in the small Gold Country city of Sonora. Attorneys who often target Wal-Mart with environmental lawsuits have sued over its use of the initiative process there, as well as in the San Bernardino County town of Apple Valley and the Silicon Valley suburb of Milpitas.

The city of Sonora argued in court filings that its citizens supported the proposed superstore so there was no point in holding an election. Wal-Mart argued that it would be unfair to "force city councils to incur unnecessary and unwanted expenses to hold elections."

The city's and company's positions reveal "their failure to appreciate the importance of elections in the initiative process," the court stated. "The results of an election represent the will of the people. A petition signed by 15 percent of the voters does not."

The legal battle slowing down Wal-Mart's expansion frustrates Sonora Mayor Hank Russell.
"These people just want to delay a process that should be part of a free market economy," he said. "I don’t think it’s the city’s role to decide who can compete."

Wal-Mart spokeswoman Delia Garcia said the existing Sonora store "has served customers faithfully and made a positive impact on the local economy."

"We are committed to providing customers the broadest selection of products to meet their family's needs and will evaluate all options for moving forward," Garcia wrote in an email.
The court's ruling goes beyond Wal-Mart, said Brett Jolley, the attorney who brought the suit.

Related

"The opinion closes what could have been a major loophole in the CEQA process which would have allowed the wealthiest developers ... to avoid CEQA and public elections by utilizing the initiative process," he wrote by email. 

Jolley quoted California Watch's story in his opening brief, but Wal-Mart objected, moving to strike that part of the petition. The judges decided that the reference to the article did not alter their conclusions and denied Wal-Mart's motion.

San Diego-based lawyer Cory Briggs, a longtime thorn in the side of Wal-Mart, said he would use the ruling to revive a similar lawsuit he is pursuing in Apple Valley. Briggs, who filed a friend-of-the-court brief in the Sonora case, heralded the decision as "a victory for the rule of law and for true majority rule."

"Any developer who thinks that they're going to buy their way to the ballot box is now going to have to do the work of actually persuading a majority of the voters," said Briggs.

Wal-Mart has had mixed success at the ballot box. Voters in Inglewood shot down the company's proposed superstore in 2004. But the residents of Menifee, in Riverside County, approved a Wal-Mart ballot initiative last year.