When Trees go Rogue

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

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

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

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

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

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

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

Homeowners can save time, money mediating tree, neighbor disputes

The problem:

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

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

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

What to do about it:

 Here are the common steps tree and view ordinances prescribe:

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

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

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

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

Can things be improved:

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

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

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

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.

Try Mediation with a Neutral Expert

There’s a trend in the legal community toward collaborative law. This is most often seen in a family law setting, where two attorneys representing husband and wife try to work together to resolve the thorny issues of diving up property and arranging child custody and support.   Often, with the consent and input of both parties, a neutral financial or other professional will be brought in to assess the situation. This is different from what we think of as a normal lawsuit, where dueling attorneys hire experts to argue their side in court or even in mediation.

The two sides go in, and often come, out of the experience as bitter adversaries, both sure they have been treated unfairly. 

Collaborative law attempts to break this cycle of recrimination, mistrust and acrimony, by taking the clients through a process whereby they work together to solve the most pressing issues facing them, with the help of the neutral expert, weighing the benefits of all options.  When this approach works, it can save money, time and the emotional well-being for all concerned.

Applying this approach to Mediation:

In circumstances where two neighbors are at an impasse over one of the neighbor’s trees, boundary lines, easements or similar issues,  a similar approach can be used in mediating the dispute.  The two parties would agree to mediate the case with an attorney or community mediator and the use of a neutral evaluator of the case, for instance, a licensed property surveyor or consulting arborist trained in evaluating the health or hazard potential of trees.  Rather than each party hiring an attorney and their own experts, they agree to submit to an experienced expert’s advice in their particular situation.

As with any mediation, everything said is confidential and the parties are free to hire attorneys and go to court, if they cannot resolve their differences.  They will, however, have a much clearer idea of what the outcome is likely to be after having gone through mediation with a neutral professional evaluating the matter from a detached, scientific point of view.

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)

Getting your neighbor to agree to mediation:

Consider taking your neighbor dispute to mediation and share the cost of having an attorney-mediator and neutral expert serve you, and help resolve your issues and keep peace in the block. You will need to initiate contact with the neighbor and try to overcome whatever hostility may have already developed that has brought you to an impasse. 

You need to explain that you would rather not have to engage the services of a lawyer and hire an expert to represent your views, but that  if you can’t resolve the differences, you may be forced to do so.  If you end up in court, the judge is most likely to send you to mediation anyway.  In the meantime, both parties will have spent hundreds, possibly thousands just to be back at square one. 

Then offer mediation with a skilled, experienced neutral expert who can evaluate the problem and recommend a mutually beneficial course of action or at least let both sides understand their options and likelihood of prevailing at trial should it go that far.  The two of you can jointly choose the neutral you feel most comfortable with. Lists can often be found at your local bar association or you can look online, use the yellow pages or ask for referrals from others.

Try mediation first. You have nothing to lose and you may find that you can settle your differences and maintain a neighborly relationship in the bargain.

"When a Tree Falls, We Hear it"

I hope everyone had a cool Yule and will have a green New Year.  Keep your trees fresh and avoid fights with the neighbors, if you can.  Trees blocking views?  Views threatening trees?  Wayward limbs getting dangerously close to the fence and backyard?  Don't litigate, Mediate. 

Tree Dispute Mediation is here for you.  Complete with an attorney mediator and expert neutral consulting arborist/tree hazard specialist.  Save time, money and your relationships with the neighbors.  Try mediation first.

Our motto since 2012:  "When a tree falls, we hear it."

What are you waiting for?

Green Legal Solutions 
and Tree Dispute Mediation
email us for more information: coastlaw@earthlink.net

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.

Do you Need to Dispute your Tree Issue with a Neutral Expert?

Reminding our Subscribers of our specialized services
 

       Tree Dispute Mediation

Green Legal Solutions, the law office of Dotty LeMieux, now offers Mediation of Tree and Vegetation disputes in cases involving these issues:

• Trees vs. views - Tree damage/neighbor vs. neighbor - Nuisance - Trees gone “bad”   Injury - Property damage - Wildland fire

Neutral expert consulting arborist/urban forester/fire ecologist Ray Moritz helps evaluate the issue from a scientific and technical viewpoint for all parties or works with your expert for collaborative result
Experienced in hundreds of cases as an expert witness for
Individuals, Insurance companies, agencies and homeowner groups

Dotty E. LeMieux, attorney at law Green Legal Solutions
8 Willow St. San Rafael CA 94901 415-485-1040 Fax: 415-485-1044 coastlaw@earthlink.net  "Like" us on Facebook:  https://www.facebook.com/pages/Tree-Dispute-Mediation-a-service-of-Green-Legal-Solutions/134208029947107

Tree Dispute Mediation, a service of Green Legal Solutions

Experienced litigator and consulting arborist provide consultation on tough questions of tree and neighbor dispute, cases of tree vs. car, pedestrian, property. Try mediation first or when you hit that wall.

 

Tree Dispute Mediation - A New Service of our Law Firm

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