Sometimes a Tree is Just a Tree

You all know the old adage, "sometimes a cigar is just a cigar," not a you know, another thing.

Well, the same can be true with trees. Yes, often what is going on when neighbors get into bitter battles over trees and views, or trees dropping leaves and sticks in their pool, or trees casting shadows, or just being a pain in the tuchas, they really have an ax to grind over something more than that. The neighbor's kid beat out their kid for a slot on the soccer team; their house is bigger, more expensive, better situated, or their big car sticks into the neighbor's parking space.

Sometimes, they just don't like them, period, no reason. Too loud, too fat, too untidy, etc.

Trees are substantial. Trees you can sue over. And so people often do.

But sometimes a tree is just a tree and when two neighbors get into it over the trees, they are really fighting over trees. And views. a lot of times it's the view, the one the tree is blocking. The one you used to have, or are pretty sure you used to have of the Bay, the hills, the river. But now there is nothing to see but that big ugly tree.

But stop and think. Talk to the neighbor. Go to mediation. Try to reach a compromise before a dispute over a tree turns into a whole other kind of cigar. 

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. 

Earth Day!

The first Earth Day was in 1970. I was there then, and all I remember was that soon thereafter it was all crunchy granola and living in harmony with the land. Good things, but it did dissipate the "movement" a little. 

By "movement" I mean the leftie radicals, who had spent the last few years fighting for civil rights, women's rights, to end the war, and you know, all that stuff. There was a spate of people (and police) behaving badly, and a lot of burned out activists. Women who couldn't get a boyfriend because the men were all scaredy chickens. Women who channeled their inner lesbian, and recipes for making your own granola on the cover of what had been a hard hitting news outlet for tracking movement actions at home and revolutionary actions abroad. 

Yes, I joined in myself, while lamenting the job I'd just lost writing pithy journalism (I did write a couple of feel good articles about personal growth and the whole "politics is personal" stuff). 

Still, politics is personal, but this is a land use news blog, so my intent was to say Happy Earth Day! Keep it green, keep it clean. Don't be frightened by apocalyptic tales of germs in your reusable cloth grocery bags. people have been carting groceries in bags, baskets and their wide skirts forever. Just another ploy by the plastics industry to get you to keep them in business churning out polluting bags to clog our landfills for the next million years. 

Words to live by - from your friendly neighborhood carbon sequestration system:

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.