More on Tree Mediation

Property Issues Crop up in Many Different Venues

If you are a lawyer reading this, know that at some time in your legal career, you will come up against property questions. Maybe you are administering an estate and need to determine the true boundaries of the real property. Is there an easement for ingress and egress that appears to be abandoned, but creates a cloud on the title because it’s still there in the deed documents?

Does the neighbor have a menacing looking row of Eucalyptus trees leaning toward your client’s house? Has a fire turned the property into rubble and you’re not sure who is to blame?

Even the most simple personal injury case involving the classic failure to yield collision may have some property management implications. Was the yield sign or line of sight obscured because the adjacent property owner failed to maintain a hedge in reasonable condition?

Did Caltrans let those median pittosporums get too scraggly for proper driving conditions?

All these and more can require expert opinions and evaluations beyond the standard accident recreations or investigations you deal with every day.

There are a number of tree experts who testify on these issues, including forensic foresters, fire ecologists, consulting arborists and others. There are surveyors and land engineers who can help bolster your case. When power line clearances are at issue, or trees improperly trimmed by power company crews cause major fires, liability fingers can be pointed all around; and will be.

Tree Dispute Mediation:

The most frequent issue that arises in my practice is Tree versus View. In towns with prized views of the Bay, these disputes are frequent and often nasty. Neighbor is pitted against neighbor. Sometimes drastic action is taken by one neighbor to retain or obtain a view. I have known people to do midnight tree topping or poison their neighbor’s trees and plants while maintaining righteous indignation that those pesky trees had the nerve to grow into their expansive (and expensive) view.

I have seen people defend the rights of looming eucalyptus, scruffy Monterey pines and scraggly acacias to grow as high as they like, ignoring polite offerings to trim the trees or mediate.

Both sides will say “I don't care how much it costs. It’s the principle of the thing!" when given an estimate of the cost for legal wrangling, including experts, court fees, attorney and mediator fees.

There are no winners in these pitched battles. Neighbors become embittered toward one another no matter the outcome. No amount of money can compensate for the loss of trees, the privacy and screening they provide, shade and shelter, and just plain beauty. On the other hand, messy foliage blocking your view of the Bay may serve no other function then to annoy the viewer. Most often, these disputes build over time until one side cannot take it anymore and fireworks ensue.

Stop the Cycle

How to stop the cycle? Some towns have Tree Committees, made up of volunteers, who will hear disputes and offer advisory opinions. Unfortunately, these citizen boards are composed of lay people, often with little or no understanding of botany or appreciation for the amenities the right trees can provide. Seldom do the disputes end amicably.

And neighbors hesitate to mediate their problems, fearing yet another round of “let’s make a deal” when all they want is what they see to be their rights: “My property, my trees.” “My property, my view.”

Something New - Mediation with a Twist

Twenty years of these same arguments and counterarguments have prompted me to try something new. Our firm, Green Legal Solutions, now offers mediation with a twist. We have teamed up with a consulting arborist and certified hazard tree assessor to act as neutral in mediation on tree issues. Will it work? Only if people are willing to listen to a “scientific” assessment of the problem. If they do, and if they can suspend their own personal animosity, maybe, just maybe, they can find the right compromise that will work. Otherwise, they will be back to hiring their own dueling arborists, go to more mediation and settlement conferences, maybe even to trial, to achieve something that is likely to look very much like what they could have achieved for far less in money, time and aggravation.

Tree Dispute Mediation: Try it in your next tree case.

City Blinks First on Albert Park Pro Ball Issue

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

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

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

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

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

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

More on Privatization of Albert Park

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

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

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


San Rafael council delays Albert Park pro baseball decision

By Jessica Bernstein-Wax
Marin Independent Journal

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

Click photo to enlarge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Privatization Scheme for San Rafael's Albert Park

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

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

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

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

Friends of the Garden file suit in San Mateo

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

Suit filed to preserve College of San Mateo garden

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

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

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

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

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

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

Legal advice

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

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

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

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

Case for full review

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

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

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

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

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

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

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

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

Tree Dispute Mediation - A New Service of our Law Firm

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

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

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

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

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

Environmental Review Needed on Massive AT&T Utility Box Project

Article in today's Beyond Chron:

by Milo Hanke‚ May. 17‚ 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is "Green" Development?

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

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

Most popular questions for the Blog

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

Quarry approved in Sonoma County

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


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

By BRETT WILKISON
THE PRESS DEMOCRAT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both also cast the issue in larger terms.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Tresch dairy family are also mulling their next move.

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

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

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

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

Copyright © 2010 PressDemocrat.com — All rights reser

Train vs. Tree in Palo Alto

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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