So, you bought you beautiful new home for the views of the City, the Bay, the hills beyond and now, a few years down the road, your neighbor has let his scraggly pines grow right into your view. What can you do? If you live in a town with a view ordinance, you may be able to do a lot. Most view ordinances allow you to retain the view you had when you moved in. Have you documented it? Photos of the view, which you must have taken when you fell in love with the property, can help immensely when proving you have a case, whether in court, mediation or in front of a "tree committee."
First, know the rules. Does your town have an ordinance? in Marin, Belvedere, Tiburon, Sausalito and Corte Madera do, these are the towns with the best views (water, bridges, city skyline mostly) and the often the highest home costs. However, even if you don't live in one of those communities, your homeowners' association may have rules for trees and views. Check your local ordinances and your CCRs (if you have them), to be sure.
Then talk to your neighbor about the issue. Will he allow you to trim for your view? If not, you may need a good land use lawyer, specializing in tree law. It is a specialty, one that depends a lot of good expert help from a consulting arborist. Make sure you use a good one if you have the situation evaluated before hiring that attorney. In any event, a good consulting arborist (not just a certified arborist), can help you decide your course of action, even if he's not allowed on the neighbor's property to assess the trees themselves. Looking at the view, the growth patters over the years (this is where the photos help), and other factors give your arborist a good method of assessing the situation to be able to help you talking to the neighbor, working with the tree committee, mediating the situation or in court if all else fails.
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Showing posts with label views. Show all posts
Showing posts with label views. Show all posts
Wednesday, June 13, 2018
Monday, November 11, 2013
Trees and Views in Tiburon California
Some towns are more protective of their residents' views and access to natural light than others. Do you have a Bay view? Can you see the magical City of San Francisco out your window? Does the sun bathe your garden in a rich glow to help keep the flowers bright and healthy and provide you with a sunny disposition?
Or are some trees down hill starting to encroach on the vista and block out the rays? If you live in the Town of Tiburon California (and many others, but we're focusing on one today), there are steps you can take to restore what you probably paid a premium price for when you first bought in a bucolic location.
Chapter 15 of the Municipal ordinance is entitled:
Or are some trees down hill starting to encroach on the vista and block out the rays? If you live in the Town of Tiburon California (and many others, but we're focusing on one today), there are steps you can take to restore what you probably paid a premium price for when you first bought in a bucolic location.
Chapter 15 of the Municipal ordinance is entitled:
Chapter 15 VIEW AND SUNLIGHT OBSTRUCTION FROM TREES
To give you an example of how expansive the protected views can be in a town with such an ordinance, here is an excerpt from the code (under section 15-2 Definitions):
"View" means a scene from the primary living area of a
residence or the active use areas of a nonresidential building. The
term "view" includes both upslope and downslope scenes,
but is generally medium or long range in nature, as opposed to short
range. Views include but are not limited to skylines,
bridges, landmarks, distant cities, distinctive geologic features,
hillside
terrains, wooded canyons, ridges and bodies of water.
Some additional examples are:
(1) San Francisco Bay (including San Pablo Bay, Richardson Bay, and islands therein);
(2) The San Francisco-Oakland Bay Bridge;
(3) The Golden Gate Bridge;
(4) The Richmond-San Rafael Bridge;
(5) Mount Tamalpais;
(6) The Tiburon Peninsula or surrounding communities (including the city of San Francisco).
Protecting your view and access to light does not allow you to unfettered tree removal. There are suggestions such as trimming, windowing or selective thinking to restore the view while providing the neighbor with shelter and privacy. And you are only entitled to restore the view and sunlight access that existed when you moved into the property.
And there is a strict procedure to be followed before any action is actually taken. For instance, you must first try to work things out with the neighbor amicably. If this does not work, you next offer to go to mediation with the neighbor. This is, in the opinion of this writer, a prudent move, one that can save the homeowners time, money and a lot of additional aggravation.
If mediation fails, or your neighbor does not agree, you may prepare a tree claim, outlining your grievances and next offer the neighbor the opportunity to go to binding arbitration. Details on preparing your claim are outlined in the ordinance. Before undertaking any of this, read the ordinance carefully.
If all else fails, you may bring suit against your neighbor. While this may become your only option, and you may well prevail, this is sure to be costly and lead to ill will on all sides. Think about it carefully.
One note: neither Tiburon nor any other Town or City that I'm aware of provides names of mediators experienced in tree law and view disputes. If they did so, mightn't it be more likely that homeowners would choose that route to resolve their differences?
Wednesday, October 30, 2013
Trees in Your Town - Know the Law
Did you know that many Cities, Towns and Counties have tree ordinances? Some have view and sunlight ordinances too. All the rules are particular to the location, but they most often call for a permit to cut down trees of a certain size, type or number. If you want to cut down one of the "desirable" trees in your town (say a redwood in Mill Valley or an oak in many places), you usually will need an arborist's report, giving your reasons, such as disease or decay. Use this handy site for finding your town's ordinance.
Sometimes, there will be hearings and your neighbors may speak out. When, as in the last post on this blog, someone wants to cut a heritage oak for construction, where those trees are protected, that might not be a good enough reason. Especially if the neighbors cry foul.
On the other hand, if you have an "undesirable" tree, such as Eucalyptus just about anywhere, acacia or fast growing pines or cypress (note, if you live on the Monterey Peninsula, proceed with caution if you want to cut a native Monterey cypress), your neighbors may cheer. They may even press the Town fathers to make you take down these trees if there is a threat of their falling on their property.
I recently had a case where an almost entirely dead tree of the "undesirable" type loomed over my client's house, making her fear to be in her own backyard. A certified tree risk assessor deemed it a hazard, but it took a judge, and a stern warning about contempt of court, to get the tree down.
This is a costly way to proceed. If your neighbor's tree is a threat to your well-being, make sure the threat is real, talk to your neighbor about it, know what the law says in your Town and consider mediation before bringing in the legal guns.
Sometimes, there will be hearings and your neighbors may speak out. When, as in the last post on this blog, someone wants to cut a heritage oak for construction, where those trees are protected, that might not be a good enough reason. Especially if the neighbors cry foul.
On the other hand, if you have an "undesirable" tree, such as Eucalyptus just about anywhere, acacia or fast growing pines or cypress (note, if you live on the Monterey Peninsula, proceed with caution if you want to cut a native Monterey cypress), your neighbors may cheer. They may even press the Town fathers to make you take down these trees if there is a threat of their falling on their property.
I recently had a case where an almost entirely dead tree of the "undesirable" type loomed over my client's house, making her fear to be in her own backyard. A certified tree risk assessor deemed it a hazard, but it took a judge, and a stern warning about contempt of court, to get the tree down.
This is a costly way to proceed. If your neighbor's tree is a threat to your well-being, make sure the threat is real, talk to your neighbor about it, know what the law says in your Town and consider mediation before bringing in the legal guns.
Monday, August 12, 2013
Homeowners can save time, money mediating tree, neighbor disputes
The
problem:
You’ve noticed something has happened over the last few years. Gradually, your neighbor’s trees have grown into the view you’ve enjoyed for the last decade. One day you realize you no longer have even the narrowest slice of the bay view you loved to watch as the sun set slowly and the sky reddened into beauty.
Is there anything you can do about this? If you live in one of Marin’s cities or towns with a tree and view ordinance (Belvedere, Tiburon, Sausalito, Corte Madera) the answer is yes. In these towns, a homeowner is entitled to restore the view he had when he came into possession of the property, if such restoration is reasonable. In most cases you are no entitled to an unhindered view, but to a reasonable view. The rights of the tree owners and the health of the trees are also taken into consideration when deciding these issues.
These ordinances also provide a method for homeowners to address disputes involving trees, views and, in some cases, sunlight. One such ordinance (in Sausalito) even provides a formal body that convenes to hear and advise on such disputes.
What to do about it:
Here are the common steps tree and view ordinances prescribe:
1. Talk to your neighbor about the problem. If you believe and can document that your view of a scenic vista, bay, hills, even other trees, in the form of wooded landscape, has been impeded unreasonably by the growth of your neighbor’s trees, all the ordnances advise talking to the neighbor first. Try to work out a compromise. The neighbor may not have been aware of the growth of his tress, and if you agree to pay for the trimming, may welcome your offer. This friendly neighbor scenario all too uncommon. Often other issues have come between the neighbors. The tree owning neighbor is defensive about his property rights. The neighbor with the lost view become indignant and talk is not an option.
2. Mediation. All ordinances require that you next offer to mediate the dispute with a neutral party, one who can listen to both sides without judgment. The hope is the two sides can come to a reconciliation through a facilitator. It is at this juncture that things usually break down. The cities and towns do not keep lists of skilled mediators, so neighbors are left to their own devices. In most cases, they simply choose to file suit.
3. Tree Committee hearing or arbitration. Arbitration is another option, but if neighbors turn down mediation, binding arbitration is unlikely. Sausalito is the only town with the Tree Committee. An aggrieved neighbor has the right to submit the grievance to the Tree Committee which will hold its own hearing. The neighbor complained against has the right to be present and to bring their own evidence or information to help the Committee come to a recommendation.
If you choose not to attend, beware, since the recommendation of the Tree Committee, creates a “rebuttable presumption” in favor of the recommendation should the case land in a court of law. That means if you are sued and your neighbor has a finding by a tree committee that your trees be trimmed, the burden of proof is essentially on you to prove they do not unreasonably block the neighbor’s view or that the neighbor never had a view since they owned the property.
Can things be improved:
Having been involved in many of these cases, I believe there may be ways to avoid a costly lawsuit and make homeowner feel better about finding an actual resolution to a vexing tree and view issue.
First, Cities and towns could keep lists of experienced mediators in tree and view disputes. This way, the homeowners could find names of those who have handled these cases before and have reached satisfactory results. When I called some municipalities to ask if they kept such a list, all I talked to said, no, they told people to use Google or the phone book.
Second, mediators could work with experts who would remain neutral and offer both sides the benefit of their expertise. This way, more homeowners would be likely to take advantage of the offer to mediate at the outset and not wait for a judge to send them to a mediator, once positions are hardened, lawyers have racked up expenses and experts are writing dueling reports.
This approach not only saves time and money for both homeowners, it has the potential of preserving the relationship between neighbors. And unless you plan to move anytime soon, keeping an amicable relationship with neighbors is all to the good.
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.
Wednesday, July 17, 2013
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.
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.
Tuesday, June 18, 2013
Mediate, Don't Litigate that Tree Issue
Got trees? Got views? Got neighbors you're feuding with? Who ya gonna call?
Specialized non-judicial tree, view, neighbor mediation with an experienced tree lawyer and expert neutral consulting arborist/tree risk assessor, that's who.
Save time, money, maybe even your neighborly relationship. Call us BEFORE you go to court. We may be able to help resolve the thorny issues that arise between neighbors cost-effectively, without resorting to expensive legal proceedings.
Try it. More info available. Write coastlaw@earthlink.net today. See our website.
Specialized non-judicial tree, view, neighbor mediation with an experienced tree lawyer and expert neutral consulting arborist/tree risk assessor, that's who.Save time, money, maybe even your neighborly relationship. Call us BEFORE you go to court. We may be able to help resolve the thorny issues that arise between neighbors cost-effectively, without resorting to expensive legal proceedings.
Try it. More info available. Write coastlaw@earthlink.net today. See our website.
Thursday, February 28, 2013
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.
Monday, November 12, 2012
Trees in the News
Trees that go bad, or bad trees. It's all depends on where you sit. Here are some late breaking stories about trees vs. people (bad tree, bad landlord), and trees v. view - in Seattle, where no trees have yielded yet in the ongoing battle.
Enjoy.
From the Redlands Daily Facts:
SAN
BERNARDINO - A Crestline woman was awarded nearly $3 million after a
jury found her landlord responsible for life-altering injuries she
received because of a fallen tree limb.
Sabrina Buelna, now 34, was hurt when the 700-pound tree branch
fell on her in the front yard of the home she and her husband rented
from Mick Hill, a landlord who owned other properties in the area.
On July 16, 2010, they were outside barbecuing when they heard the 100-year-old Black Oak tree on the property start to crack. Their toddler was sitting beneath the tree.
Buelna was able to push the child out of the way, but the branch came down on her her foot, which was crushed under its weight and nearly had to be amputated, said lawyers from DeWitt Algorri & Algorri, the Pasadena law firm that represented the family.
She went through months of treatment and wracked up almost $300,000 in medical bills.
Buelna is still undergoing physical therapy and now walks with a cane. Her husband had to quit his job to take care of her, said Patrick Nolan, an assistant attorney in the trial.
After the incident, officials came out and discovered the tree was completely rotted to the core, and it had been that way for years.
The plaintiff's claim Farmer's Insurance initially denied liability when the two parties started going back and forth.
"The offers were not enough," Nolan said.
But Mark Toohey, a spokesman for Farmers Insurance,said the company made multiple attempts to settle this case before the trial started.
"All of our attempts were rejected by the plaintiff," he said.
The two sides went to trial early last month where Hill admitted that he had not conducted a state-required inspection for dangerous conditions before the Buelna family moved in to the mountain home.
"Landlords have a duty to do a reasonable inspection of the property," Nolan said.
Hill argued that the fallen branch looked healthy from the outside and he could not have known of the rot.
But during the trial, Buelna's lawyers said Hill had run a tree removal service as part of his real estate development background and that the defendant had at one point described himself as a tree expert.
"Mr. Hill never described himself as a tree expert," Toohey said Thursday. "He removed trees as part of preparation of a site in his duties as a general contractor."
On Oct. 25 jurors came back with their verdict - that Hill was responsible for the damage and the victim would receive $2.9 million.
"While we respect the jury's decision, we disagree with the verdict and we intend to explore our post-trial options," Toohey said.
This personal injury case is a clear warning to all landlords, Nolan said.
"Landlord have a duty to inspect their properties for dangerous conditions before they turn it over to their tenants," Nolan said.
"Under the law, a tenant has the right to expect the property is free of any dangerous conditions."
lori.fowler@inlandnewspapers.com
from the Seattle Times
Enjoy.
From the Redlands Daily Facts:
Landlord found responsible after tree branch falls, injures Crestline tenant
Posted:
11/10/2012 02:37:31 PM PST
On July 16, 2010, they were outside barbecuing when they heard the 100-year-old Black Oak tree on the property start to crack. Their toddler was sitting beneath the tree.
Buelna was able to push the child out of the way, but the branch came down on her her foot, which was crushed under its weight and nearly had to be amputated, said lawyers from DeWitt Algorri & Algorri, the Pasadena law firm that represented the family.
She went through months of treatment and wracked up almost $300,000 in medical bills.
Buelna is still undergoing physical therapy and now walks with a cane. Her husband had to quit his job to take care of her, said Patrick Nolan, an assistant attorney in the trial.
After the incident, officials came out and discovered the tree was completely rotted to the core, and it had been that way for years.
The plaintiff's claim Farmer's Insurance initially denied liability when the two parties started going back and forth.
"The offers were not enough," Nolan said.
But Mark Toohey, a spokesman for Farmers Insurance,said the company made multiple attempts to settle this case before the trial started.
"All of our attempts were rejected by the plaintiff," he said.
The two sides went to trial early last month where Hill admitted that he had not conducted a state-required inspection for dangerous conditions before the Buelna family moved in to the mountain home.
"Landlords have a duty to do a reasonable inspection of the property," Nolan said.
Hill argued that the fallen branch looked healthy from the outside and he could not have known of the rot.
But during the trial, Buelna's lawyers said Hill had run a tree removal service as part of his real estate development background and that the defendant had at one point described himself as a tree expert.
"Mr. Hill never described himself as a tree expert," Toohey said Thursday. "He removed trees as part of preparation of a site in his duties as a general contractor."
On Oct. 25 jurors came back with their verdict - that Hill was responsible for the damage and the victim would receive $2.9 million.
"While we respect the jury's decision, we disagree with the verdict and we intend to explore our post-trial options," Toohey said.
This personal injury case is a clear warning to all landlords, Nolan said.
"Landlord have a duty to inspect their properties for dangerous conditions before they turn it over to their tenants," Nolan said.
"Under the law, a tenant has the right to expect the property is free of any dangerous conditions."
lori.fowler@inlandnewspapers.com
from the Seattle Times
Oleruds' appraisal: Tree cuts value of house by $255,000
A Chinese pine on the edge of Bruce and Linda
Baker's Clyde Hill property is worth $18,400, based on an arborist's
calculation of the cost to replace the rare tree. But the tree has
reduced the value of John and Kelly Olerud's house across the street by
$255,000 because it blocks much of their westerly view, according to a
recent appraisal.
By Keith Ervin
Seattle Times staff reporter
A Chinese pine on the edge of Bruce and Linda Baker's Clyde
Hill property is worth $18,400, based on an arborist's calculation of
the cost to replace the rare tree.
But the tree drops the value of John and Kelly Olerud's house across the street by $255,000 because it blocks much of their westerly view, according to a recent appraisal.
John Olerud, a former Seattle Mariner, American League batting champion and three-time Gold Glove winner, commissioned the appraisal to bolster his request that the city order the tree removed under Clyde Hill's view-protection ordinance.
The Oleruds have been attempting for more than two years to persuade — or force — the Bakers to cut down two trees that diminish their hillside view of Lake Washington, Seattle and the Olympic Mountains.
The Bakers have refused.
The city Board of Adjustment will hold a second hearing Wednesday on the Oleruds' request for an order to cut the trees down. The board has never issued a removal order since the "view obstruction and tree removal" ordinance was adopted in 1991.
A survey submitted by the Oleruds two weeks ago said the Chinese pine and a Colorado spruce behind it block 40 percent of what would otherwise be a 30-degree western view from a porch off the family room. The view isn't wider because of other trees on the hillside, including a cedar on the Bakers' land.
If the pine and spruce were cut down, the value of the Oleruds' 12-room, 6,680-square-foot hillside home would rise from $4.045 million to $4.3 million, appraisers Patrick Lamb and Barry Wilson calculated.
Property values are closely associated with views in Clyde Hill, a city of almost 3,000 between Bellevue and Medina.
The Bakers' Chinese pine, possibly 50 years old, was there long before the Oleruds bought the property across the street in 2006 and built their luxury house.
The Bakers have cut down a coast redwood; agreed to remove the spruce, valued at $4,800; and pruned the Chinese pine in a way intended to allow some of the view to show through. But they don't want to part with the pine, which they see as beautiful and the Oleruds call an eyesore.
The Oleruds' house is separated from the Bakers' by a street and a grassy lot owned by the Oleruds. The King County assessor rates the view from the Olerud house as "average," the view from the Bakers' $1.1 million house as "excellent."
The board can order the Bakers' trees removed if it finds they unreasonably obstruct the Oleruds' views. Among the factors the board may consider are how much of the view is blocked, whether landmarks are obscured, how the Oleruds' property value is affected, and how the trees and the views they obstruct affect both families' enjoyment of their properties.
Arborist Brian Gilles, hired by the Oleruds, urged the board to order the trees removed, calling them "a quintessential example of why the law was enacted."
Gilles wrote it would not be hard to find small trees or large shrubs that would serve as appropriate replacements for the trees, but Bruce Baker said tree brokers couldn't provide a pine small enough to give the Oleruds a fuller view but large enough to satisfy the Bakers.
Keith Ervin: 206-464-2105
or kervin@seattletimes.com
But the tree drops the value of John and Kelly Olerud's house across the street by $255,000 because it blocks much of their westerly view, according to a recent appraisal.
John Olerud, a former Seattle Mariner, American League batting champion and three-time Gold Glove winner, commissioned the appraisal to bolster his request that the city order the tree removed under Clyde Hill's view-protection ordinance.
The Oleruds have been attempting for more than two years to persuade — or force — the Bakers to cut down two trees that diminish their hillside view of Lake Washington, Seattle and the Olympic Mountains.
The Bakers have refused.
The city Board of Adjustment will hold a second hearing Wednesday on the Oleruds' request for an order to cut the trees down. The board has never issued a removal order since the "view obstruction and tree removal" ordinance was adopted in 1991.
A survey submitted by the Oleruds two weeks ago said the Chinese pine and a Colorado spruce behind it block 40 percent of what would otherwise be a 30-degree western view from a porch off the family room. The view isn't wider because of other trees on the hillside, including a cedar on the Bakers' land.
If the pine and spruce were cut down, the value of the Oleruds' 12-room, 6,680-square-foot hillside home would rise from $4.045 million to $4.3 million, appraisers Patrick Lamb and Barry Wilson calculated.
Property values are closely associated with views in Clyde Hill, a city of almost 3,000 between Bellevue and Medina.
The Bakers' Chinese pine, possibly 50 years old, was there long before the Oleruds bought the property across the street in 2006 and built their luxury house.
The Bakers have cut down a coast redwood; agreed to remove the spruce, valued at $4,800; and pruned the Chinese pine in a way intended to allow some of the view to show through. But they don't want to part with the pine, which they see as beautiful and the Oleruds call an eyesore.
The Oleruds' house is separated from the Bakers' by a street and a grassy lot owned by the Oleruds. The King County assessor rates the view from the Olerud house as "average," the view from the Bakers' $1.1 million house as "excellent."
The board can order the Bakers' trees removed if it finds they unreasonably obstruct the Oleruds' views. Among the factors the board may consider are how much of the view is blocked, whether landmarks are obscured, how the Oleruds' property value is affected, and how the trees and the views they obstruct affect both families' enjoyment of their properties.
Arborist Brian Gilles, hired by the Oleruds, urged the board to order the trees removed, calling them "a quintessential example of why the law was enacted."
Gilles wrote it would not be hard to find small trees or large shrubs that would serve as appropriate replacements for the trees, but Bruce Baker said tree brokers couldn't provide a pine small enough to give the Oleruds a fuller view but large enough to satisfy the Bakers.
Keith Ervin: 206-464-2105
or kervin@seattletimes.com
Tuesday, September 18, 2012
Trees vs. views Twenty-Five Years later
Sometimes these things drag on and on and on. Years. Decades. Past the time when the house is sold, the trees removed, the owners dead. Read this article from the San Francisco Chronicle for how obsessive some people can be about their views, and others can be about their trees, or not their trees, for that matter.
Fascinating!
Fight over Oakland trees, views not over
By the time Phyllis Bishop won the right to trim and clear her neighbors' trees and regain the panoramic bay view from her Oakland hills home, 25 years had passed, her husband Lloyd had died, and she was living in a retirement home.
Bishop, 95, sighed with relief at the victory of an epic legal and political battle with her neighbors that went all the way to the state Supreme Court. Yet, once the neighbors' trees were cleared this year, Bishop noticed that city trees blocked the view from her property, violating a city ordinance.
It didn't matter that she no longer lived in her home, which she is now renting. She began negotiating for the clearing of the city trees - the cost of which she would pay - out of a sense of justice and on grounds that it affects the property's value. The city agreed, but one set of neighbors objected.
"Guess who?" Bishop said.
That would be Okhoo and Ernest Hanes, the neighbors who lost their fight with her to keep their trees.
They - like Bishop - no longer live in their Oakland hills home but rent it out. They now live in Napa.
The Bishops and the Haneses once lived near each other in the hills, tied only by a property line until the decades-long feud intertwined them. Tuesday, they'll go before the City Council for what Bishop hopes will be the last fight. Okhoo Hanes is unsure the end of the battle is near, even though she and her husband, both 55, have lost more than $200,000 in legal fees and many trees they cherished.
Asked whether she would sue or take another tack if the city agrees to remove the trees, Okhoo Hanes said, "I don't know."
The trees in question are mostly acacias, though the city says Bishop should also be allowed to trim some branches from five large Monterey cypresses and Monterey pines.
"To own a part of this beautiful part of the world was a privilege," said Phyllis, who was born in Oakland and who, like her husband, was an Oakland schoolteacher. "We'd traveled. We knew this was special."
Wary that developers would build up the property below them, she said they successfully sought an easement ensuring nothing would be built to block their view before they bought the house. But it only referred to buildings.
"It didn't refer to vegetation," she said ruefully. "We didn't anticipate that."
For 23 years, the Bishops asked their neighbors if they could pay for the tree trimming. The neighbors always said yes, said Phyllis.
Then, in 1984, the Haneses moved in. Three years later, the Bishops saw that it was time for a trimming. Six previous owners of the Hanes home had always agreed. The Haneses didn't.
"It had no effect on the people who owned the property, but it maintained the view," she said.
The Bishops say they tried to talk to the Haneses. They asked their city councilman to intervene. They suggested a mediator. They offered to buy land covered by the foliage.
"They wouldn't talk about it at all," Bishop said. "Finally, we sued them."
The Bishops used Oakland's View Ordinance as their justification. The ordinance allows property owners to restore "a reasonable amount of the view that they had when they purchased their property, whether the trees are growing on public or private property," according to a city report. Native trees and trees on park property are exempt.
After the city reworked its ordinance, the courts ultimately upheld the Bishops' contention that they had the right to trim the trees.
Councilwoman Libby Schaaf grew up within a mile of the disputed trees and now represents the area.
"It's one of the things that's amazing about Oakland: We have bay views while still living in the forest," she said. "But trees do grow taller. ... It's tragic that this neighborhood dispute has gone on so long and taken up public resources."
The trees "gave a sense of seclusion," said Okhoo Hanes. Despite the urban setting, she said the trees meant "we had a feeling of living in a hideaway."
After the state Supreme Court denied their appeal last October - two days after Lloyd Bishop died at age 89 - the Haneses were forced to clear their trees.
"After the tree removal, we lost a sense of enclosure," she said.
In the current appeal, the Haneses say that landslides are a risk. An engineer disagrees. In addition, city staffers note, the Fire Department had "excessive vegetation" in the area removed in 2009, and no landslides occurred.
"That's an example of the attitude they showed toward us," Okhoo Hanes said. "They didn't value our ownership even though they were adamant in asserting their property rights."
Both families talk of the children raised in their homes. Bishop hopes that one of her two adult children will eventually live in the property.
"I've done about all I can do," Bishop said. "I'm going to try to outlive them. I don't know if I will or not. Would you care to place a bet?"
This article has been corrected since it appeared in print versions.
Fascinating!
Fight over Oakland trees, views not over
Matthai Kuruvila
By the time Phyllis Bishop won the right to trim and clear her neighbors' trees and regain the panoramic bay view from her Oakland hills home, 25 years had passed, her husband Lloyd had died, and she was living in a retirement home.
Bishop, 95, sighed with relief at the victory of an epic legal and political battle with her neighbors that went all the way to the state Supreme Court. Yet, once the neighbors' trees were cleared this year, Bishop noticed that city trees blocked the view from her property, violating a city ordinance.
It didn't matter that she no longer lived in her home, which she is now renting. She began negotiating for the clearing of the city trees - the cost of which she would pay - out of a sense of justice and on grounds that it affects the property's value. The city agreed, but one set of neighbors objected.
"Guess who?" Bishop said.
That would be Okhoo and Ernest Hanes, the neighbors who lost their fight with her to keep their trees.
They - like Bishop - no longer live in their Oakland hills home but rent it out. They now live in Napa.
The Bishops and the Haneses once lived near each other in the hills, tied only by a property line until the decades-long feud intertwined them. Tuesday, they'll go before the City Council for what Bishop hopes will be the last fight. Okhoo Hanes is unsure the end of the battle is near, even though she and her husband, both 55, have lost more than $200,000 in legal fees and many trees they cherished.
Asked whether she would sue or take another tack if the city agrees to remove the trees, Okhoo Hanes said, "I don't know."
The trees in question are mostly acacias, though the city says Bishop should also be allowed to trim some branches from five large Monterey cypresses and Monterey pines.
A home with a view
Phyllis and Lloyd Bishop moved into their home in 1964. They could see Alcatraz, the Golden Gate Bridge and Treasure Island."To own a part of this beautiful part of the world was a privilege," said Phyllis, who was born in Oakland and who, like her husband, was an Oakland schoolteacher. "We'd traveled. We knew this was special."
Wary that developers would build up the property below them, she said they successfully sought an easement ensuring nothing would be built to block their view before they bought the house. But it only referred to buildings.
"It didn't refer to vegetation," she said ruefully. "We didn't anticipate that."
For 23 years, the Bishops asked their neighbors if they could pay for the tree trimming. The neighbors always said yes, said Phyllis.
Then, in 1984, the Haneses moved in. Three years later, the Bishops saw that it was time for a trimming. Six previous owners of the Hanes home had always agreed. The Haneses didn't.
"It had no effect on the people who owned the property, but it maintained the view," she said.
The Bishops say they tried to talk to the Haneses. They asked their city councilman to intervene. They suggested a mediator. They offered to buy land covered by the foliage.
"They wouldn't talk about it at all," Bishop said. "Finally, we sued them."
The Bishops used Oakland's View Ordinance as their justification. The ordinance allows property owners to restore "a reasonable amount of the view that they had when they purchased their property, whether the trees are growing on public or private property," according to a city report. Native trees and trees on park property are exempt.
After the city reworked its ordinance, the courts ultimately upheld the Bishops' contention that they had the right to trim the trees.
Councilwoman Libby Schaaf grew up within a mile of the disputed trees and now represents the area.
"It's one of the things that's amazing about Oakland: We have bay views while still living in the forest," she said. "But trees do grow taller. ... It's tragic that this neighborhood dispute has gone on so long and taken up public resources."
Seeking sanctuary
The Haneses, too, believe in the righteousness of their cause. Where the Bishops saw expansiveness in the treeless view, the Haneses found the sanctuary that comes with living among trees.The trees "gave a sense of seclusion," said Okhoo Hanes. Despite the urban setting, she said the trees meant "we had a feeling of living in a hideaway."
After the state Supreme Court denied their appeal last October - two days after Lloyd Bishop died at age 89 - the Haneses were forced to clear their trees.
"After the tree removal, we lost a sense of enclosure," she said.
In the current appeal, the Haneses say that landslides are a risk. An engineer disagrees. In addition, city staffers note, the Fire Department had "excessive vegetation" in the area removed in 2009, and no landslides occurred.
Both sides see slights
Both sides have an accounting of slights. Phyllis Bishop remembers welcoming the Haneses to the neighborhood, she said, only to have Okhoo respond rudely. Okhoo Hanes said it still stings to think of how the Bishops, she says, said that land with just wild trees and shrubs had no value."That's an example of the attitude they showed toward us," Okhoo Hanes said. "They didn't value our ownership even though they were adamant in asserting their property rights."
Both families talk of the children raised in their homes. Bishop hopes that one of her two adult children will eventually live in the property.
"I've done about all I can do," Bishop said. "I'm going to try to outlive them. I don't know if I will or not. Would you care to place a bet?"
This article has been corrected since it appeared in print versions.
Tuesday, August 14, 2012
Do you Need to Dispute your Tree Issue with a Neutral Expert?
Reminding our Subscribers of our specialized services
Tree Dispute Mediation
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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
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
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
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