THE POLITICS OF LAW; THE LAW OF POLITICS
What You Need to Know When Developers Come to Call:
You have just learned that a developer has submitted plans for a 1200 unit development on the old dairy farm. You’re outraged that a neighborhood greenbelt will now be covered with Mc Mansions. You worry about traffic impacts and the fate of the historic oak trees that cover the property.
Is there anything you and your neighbors can do?
You might call your County Supervisor. You might write letters to the editor or chain yourself to a fence in front of the site. You might bring in the Ruckus Society to lead a protest march. Or hire a pit bull attorney to sue everyone in sight.
You might simply tear your hair out in frustration.
Or you could bring on board a seasoned land use lawyer who is also versed in grassroots political action and lobbying techniques. Someone who can draft an effective legal response to an Environmental Impact Report (EIR) and represent you and your neighbors before the Planning Commission. Someone who can also help your group organize, build support for the cause and let the local politicians know you mean business.
A Mutli-modal Approach to Environmental Problems:
You’ve heard the term multi-modal in the context of technology and transit planning. But it applies just as well in the community environmental arena. Let me explain.
Community groups shouldn’t have to reinvent the wheel every time a developer or big box retailer comes calling. A multi-modal approach using law and political action can provide you time proven techniques to help you win your environmental battles.
Over the years, I have learned techniques for working with neighborhoods and community groups beyond legal representation. My practice has grown as a result into three distinctive realms:
1) Public Interest Law: representing citizen and environmental groups in public hearings, reviewing and commenting on EIR’s and litigating environmental cases; advising clients in First Amendment petition rights and election law; drafting initiatives and referenda.
2) Campaign Consulting for Candidates and Issues: strategic campaign planning, reviewing issues and crafting a message for voters and ensuring the message is delivered effectively
3) Activist Training: providing the tools necessary for your group to influence public opinion, lobby elected officials and wage an effective campaign for your cause
In the context of a community environmental issue, these three realms all contribute to a successful outcome. Having someone who understands both the law and the politics involved early on in the process is crucial.
Using a multi-modal approach allows you to tackle the issues of strategic planning, coalition building and fundraising while addressing the fine legal points in the environmental review process. Lobbying officials and “speaking truth to power” are also crucial in waging a battle that will affect your community and quality of life.
Remember, an environmental legal battle IS a political campaign.
The Advantages of Multi-modal Environmental Action:
Using a multi-modal approach can avoid unnecessary litigation by involving an experienced land use attorney who is also skilled in campaign and lobbying techniques. In this way, you magnify your clout and make the decision-makers sit up and take notice of your cause. In preventing a planned doubling of San Quentin Prison, an ad hoc group deposited thousands of signatures on the desk of the President of the Board of Supervisors demanding the EIR be reopened for failure to properly notice the local community (a legal position).
The result was a withdrawal of County support, which caused the State to abandon its plans altogether (a political outcome). Using grassroots techniques to take the message to both the public and the decision-makers avoided costly litigation.
This approach also offers opportunity for collaboration between grassroots activists and legal professionals to strengthen the position of both. A successful lawsuit to stop local jail construction led to a successful campaign to preserve the land from future construction in Marin County.
Citizens used a lobbying and public relations campaign to piggyback on their legal arguments to derail piecemeal construction of cell phone towers in rural Mendocino County.
In McCloud, California, a successful lawsuit challenging the legality of a contract with the giant Nestle Corporation for sale of water rights dovetailed with Citizen action to keep the project in the public’s eyes and wage a strong grass roots campaign.
This office has been working with community groups, training activists and waging legal battles for more than 15 years. Many of the candidates I have helped elect have come from these environmental campaigns. When environmental and community activists run for office, the effects of this work are far reaching and very rewarding for all concernmed.
Dotty E. LeMieux
Dotty E. LeMieux practices public interest environmental, land use and election law in Mill Valley, California, along with advising candidates for elected office. She offers activist trainings for citizen groups and teaches “Practical Politics” through the College of Marin Community Education program. You may reach her at coastlaw@earthlink.net
A newsletter on land use, tree law, property and boundary issues and general environmental topics. What's new in CEQA, neighbor law and beyond.
Wednesday, June 15, 2005
Friday, June 10, 2005
EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT EASEMENTS
EASEMENTS ARE TRICKY BUSINESS FOR UNWARY PROPERTY OWNERS
Derived from the Old French aisement, ‘convenience or accommodation’
Don’t Block that Easement!
Often the first time an easement becomes an issue for a property owner is when he finds it blocked in some way. Have you always used the narrow driveway that runs alongside your neighbor’s property to get to and from your own home? It’s likely what you have is an easement over a portion of his property. Looked at your deed lately? Occasionally, the owner of the property over which the easement runs will encroach into it, sometimes in all innocence. If the easement isn’t regularly used, or only a portion of it is used, the property owner may think it has been abandoned or isn’t needed.
Most easements homeowners deal with have to do with getting into and out of landlocked property. Say you buy a piece of land on the side of a beautiful hill in somewhere like Nicasio, but there’s no access road to the property. How do you get to the land? Where do you build your road? These are questions you need answers to before planning your dream house. Besides the cost of building a hillside driveway, you will probably need to obtain an easement across the downhill neighbor’s property. This kind of easement is often created at the time of subdivision, but if you are buying land that is not part of an existing subdivision, there may not be an easement in place.
You need to find out if the neighbor will grant you as easement for ingress and egress and if so, what will it cost you?
Often easements are reserved from property carved out of a larger lot, to allow the original owner or those coming after him access to their land. Make sure you know if land you buy has an easement on it for back lot neighbors.
No one may unreasonably interfere with the purpose for which an easement has been created. That means you can’t put up a locked gate across the driveway your neighbor uses to access his home. Nor can you build a fence so far into the easement that it blocks the way or creates a hazard.
The question that faces courts when these disputes escalate into litigation is what is reasonable? Is it reasonable to put a fence two feet into the easement but not three? Is an easily opened gate across the drive ok, if it serves the function of keeping livestock in?
Often these disputes arise because no one knows exactly where the easement is located. Or it appears to have been abandoned because it’s rarely used or not used for its intended purpose. A new road may now provide access and the old easement may no longer be needed.
Is an Easement Forever?
Some easements are hard to get rid of. If you notice there’s one in your deed, and no one’s been using it for years, don’t stop there. If you have questions about whether it’s ok to block off a long overgrown roadway, or move your garden into the easement way, you better consult an attorney first. If the neighbor objects, you could find yourself in court while a judge and jury sort out the property issues.
Even if the easement hasn’t been used for years, it doesn’t automatically revert to your use. Even if they start using it for another purpose altogether, so long as that purpose is not result in “a physical change that permanently and materially prevented [the easement holder] from using the easement or made his use of the easement severely burdensome….” The easement will not be extinguished. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754.) In fact, even after twenty years of disuse, the easement holder may be able to reclaim the easement by filing a “late notice of intent to preserve easement” pursuant to California Civil Code section 887.070.
Overburdening the Easement
An easement may have been created for one use and now be used for another. For instance, what was once a wagon trail used to alfalfa to a head of cattle that is now long gone may now see several hundred car trips per day as new owners of the now subdivided land pass through your property.
Courts will evaluate the issue of whether a change in use of an easement is consistent with the purpose for which it was created. Does the use by the subdivision homeowners comport with the earlier use by the farmer to carry food to his cattle? If the change in use is one of degree instead of kind, the easement will be allowed to continue.
This change “includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden …. (Wall v. Rudolph (1961) 198 Cal.App.2d 684.) In the case of a farm being subdivided, the court will look to the reasonableness and forseeability of the new use.
If the new owners continue to use the easement for long enough, they may acquire a right to continue using it through prescription, or it may even be seen as a public right of way.
Conservation Easements
Often jurisdictions require conservation easements when granting a conditional use permit for agricultural land. These can either be public or private easements. Lucas Film property was created out of historic dairy ranches and contains many thousands of acres of agricultural land preserved in private easements as well as miles of public access trails as part of its deal with the county for development on the north side of Lucas Valley Road, just west of Big Rock.
The Marin Agricultural land Trust acquires easements from West Marin farmers to ensure the land stays in agriculture. To date more than 32,000 acres or one quarter of all Marin’s agricultural land has been protected in this way.
The Marin County Open Space District holds easements more than another 2500 acres.
If you have questions about an easement of your own that your deed description or parcel map can’t answer, consider consulting a land use or real estate attorney for help unraveling the problem.
Dotty E. LeMieux is a land use, tree and property law attorney in Mill Valley and can be reached at coastlaw@earthlink.net. A version of this story appeared in the Marinscope newspapers in Marin County, California.
Derived from the Old French aisement, ‘convenience or accommodation’
Don’t Block that Easement!
Often the first time an easement becomes an issue for a property owner is when he finds it blocked in some way. Have you always used the narrow driveway that runs alongside your neighbor’s property to get to and from your own home? It’s likely what you have is an easement over a portion of his property. Looked at your deed lately? Occasionally, the owner of the property over which the easement runs will encroach into it, sometimes in all innocence. If the easement isn’t regularly used, or only a portion of it is used, the property owner may think it has been abandoned or isn’t needed.
Most easements homeowners deal with have to do with getting into and out of landlocked property. Say you buy a piece of land on the side of a beautiful hill in somewhere like Nicasio, but there’s no access road to the property. How do you get to the land? Where do you build your road? These are questions you need answers to before planning your dream house. Besides the cost of building a hillside driveway, you will probably need to obtain an easement across the downhill neighbor’s property. This kind of easement is often created at the time of subdivision, but if you are buying land that is not part of an existing subdivision, there may not be an easement in place.
You need to find out if the neighbor will grant you as easement for ingress and egress and if so, what will it cost you?
Often easements are reserved from property carved out of a larger lot, to allow the original owner or those coming after him access to their land. Make sure you know if land you buy has an easement on it for back lot neighbors.
No one may unreasonably interfere with the purpose for which an easement has been created. That means you can’t put up a locked gate across the driveway your neighbor uses to access his home. Nor can you build a fence so far into the easement that it blocks the way or creates a hazard.
The question that faces courts when these disputes escalate into litigation is what is reasonable? Is it reasonable to put a fence two feet into the easement but not three? Is an easily opened gate across the drive ok, if it serves the function of keeping livestock in?
Often these disputes arise because no one knows exactly where the easement is located. Or it appears to have been abandoned because it’s rarely used or not used for its intended purpose. A new road may now provide access and the old easement may no longer be needed.
Is an Easement Forever?
Some easements are hard to get rid of. If you notice there’s one in your deed, and no one’s been using it for years, don’t stop there. If you have questions about whether it’s ok to block off a long overgrown roadway, or move your garden into the easement way, you better consult an attorney first. If the neighbor objects, you could find yourself in court while a judge and jury sort out the property issues.
Even if the easement hasn’t been used for years, it doesn’t automatically revert to your use. Even if they start using it for another purpose altogether, so long as that purpose is not result in “a physical change that permanently and materially prevented [the easement holder] from using the easement or made his use of the easement severely burdensome….” The easement will not be extinguished. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754.) In fact, even after twenty years of disuse, the easement holder may be able to reclaim the easement by filing a “late notice of intent to preserve easement” pursuant to California Civil Code section 887.070.
Overburdening the Easement
An easement may have been created for one use and now be used for another. For instance, what was once a wagon trail used to alfalfa to a head of cattle that is now long gone may now see several hundred car trips per day as new owners of the now subdivided land pass through your property.
Courts will evaluate the issue of whether a change in use of an easement is consistent with the purpose for which it was created. Does the use by the subdivision homeowners comport with the earlier use by the farmer to carry food to his cattle? If the change in use is one of degree instead of kind, the easement will be allowed to continue.
This change “includes normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden …. (Wall v. Rudolph (1961) 198 Cal.App.2d 684.) In the case of a farm being subdivided, the court will look to the reasonableness and forseeability of the new use.
If the new owners continue to use the easement for long enough, they may acquire a right to continue using it through prescription, or it may even be seen as a public right of way.
Conservation Easements
Often jurisdictions require conservation easements when granting a conditional use permit for agricultural land. These can either be public or private easements. Lucas Film property was created out of historic dairy ranches and contains many thousands of acres of agricultural land preserved in private easements as well as miles of public access trails as part of its deal with the county for development on the north side of Lucas Valley Road, just west of Big Rock.
The Marin Agricultural land Trust acquires easements from West Marin farmers to ensure the land stays in agriculture. To date more than 32,000 acres or one quarter of all Marin’s agricultural land has been protected in this way.
The Marin County Open Space District holds easements more than another 2500 acres.
If you have questions about an easement of your own that your deed description or parcel map can’t answer, consider consulting a land use or real estate attorney for help unraveling the problem.
Dotty E. LeMieux is a land use, tree and property law attorney in Mill Valley and can be reached at coastlaw@earthlink.net. A version of this story appeared in the Marinscope newspapers in Marin County, California.
Wednesday, May 25, 2005
PROPERTY LINES
SOMETIMES A FENCE IS JUST A FENCE
I once had a client who had lived in his home for more than 20 years. One day he awoke to find the side neighbor building a fence ten feet over onto his property!
“What are you doing?” shouted my client, let’s call him Sam. “Well, Sam,” said the neighbor, “I’m putting a fence on the property line. I had a survey done and guess what; you’re ten feet over on my side of the line.” Sure enough there were surveyor’s stakes in the ground marking the line of the new fence.
Sam was outraged, and after jumping up and down a few times, called me.
Sam showed me his parcel map, and pointed indignantly to where the neighbor had put the fence. On his side of the line. Or so he insisted.
Sam was wrong. Why?
Sam made the simple mistake many homeowners make – he relied on a long standing fenceline along the side of his yard, one put up some 30 years before he bought the property. His realtor and the seller both assumed the fenceline was the property line. So did the former owner of the property beside him. Sam pointed to his deed and the not very accurate parcel map from the County Recorder’s office, the one that was created in nineteen ought eight when the land was first subdivided, as further evidence that his property was where he thought it was. What stumped him was my pointing out that nowhere on that parcel map was a fenceline depicted. Nothing, in other words, confirmed the old fence was on the property line.
In the nearly 100 years between the creation of the subdivision and the present time, uses changed, fences shifted, shrubbery grew and people laid out boundaries based on someone else’s faded memories.
Is Sam plumb out of luck? Well, that depends. Here are some ways Sam may yet get to keep the property he’s considered his all these years.
AGREED BOUNDARIES
Sam may have an agreed boundary line he can point to for his claim that the ten feet are rightfully his.
An agreed boundary is one agreed upon in years past to settle a difference or dispute over the true location of the property line. If there is an existing fence along what Sam thinks is the property line, it may that the previous neighbors had this same dispute years ago, and agreed that the boundary line would be where Sam thinks it is
He would need to show some past uncertainty as to where the line was and an agreement between the (then) owners of both sides that the fence was to be used as the property line. Sam wins if he can convince a court that this is the case.
If indeed the fence has existed and been used for some fifty years or more as the property line, that fact in itself may be enough evidence to show the agreement needed to prove the case.
Sam may need to track down previous owners, or their heirs, to make his case in court.
ADVERSE POSSESSION
If Sam can show he has used the property as if it were his own in an “open and notorious” manner, and that he has have paid the property taxes on it continuously for five years, he may be able to claim under adverse possession.
The payment of property taxes is the tricky part here. Chances are, if the neighbor’s survey is actually correct (and Sam should certainly have his own done, just to be sure), then it’s not likely he’s been paying taxes on the disputed portion.
However, if he can show everything but payment of the property taxes, he may have a good argument that he has acquired an easement over that portion of the property.
LOT LINE ADJUSTMENT
Does Sam’s neighbor really need the extra few feet? Or would he rather have an extra few bucks and give Sam a lot line adjustment. A lot line adjustment is a modification of a boundary line between two or more legal parcels. Sam will need to apply for this procedure through his local Planning Department, pay a fee and have a new legal description prepared. He also needs his neighbor’s written agreement to present his application.
Sam may also get his neighbor to let him use the property, or split the difference to avoid a protracted legal battle. Sam could obtain a “license” for use from the neighbor for this purpose.
If this happens to you, talk to your neighbor first. Find out what his needs are; then, if you can’t work it out amicably between you, a good real property attorney can advise you of your options.
Dotty E. LeMieux
Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County and can be reached at coastlaw@earthlink.net. (A version of this story first appeared in the Marin Scope Newspapers)
I once had a client who had lived in his home for more than 20 years. One day he awoke to find the side neighbor building a fence ten feet over onto his property!
“What are you doing?” shouted my client, let’s call him Sam. “Well, Sam,” said the neighbor, “I’m putting a fence on the property line. I had a survey done and guess what; you’re ten feet over on my side of the line.” Sure enough there were surveyor’s stakes in the ground marking the line of the new fence.
Sam was outraged, and after jumping up and down a few times, called me.
Sam showed me his parcel map, and pointed indignantly to where the neighbor had put the fence. On his side of the line. Or so he insisted.
Sam was wrong. Why?
Sam made the simple mistake many homeowners make – he relied on a long standing fenceline along the side of his yard, one put up some 30 years before he bought the property. His realtor and the seller both assumed the fenceline was the property line. So did the former owner of the property beside him. Sam pointed to his deed and the not very accurate parcel map from the County Recorder’s office, the one that was created in nineteen ought eight when the land was first subdivided, as further evidence that his property was where he thought it was. What stumped him was my pointing out that nowhere on that parcel map was a fenceline depicted. Nothing, in other words, confirmed the old fence was on the property line.
In the nearly 100 years between the creation of the subdivision and the present time, uses changed, fences shifted, shrubbery grew and people laid out boundaries based on someone else’s faded memories.
Is Sam plumb out of luck? Well, that depends. Here are some ways Sam may yet get to keep the property he’s considered his all these years.
AGREED BOUNDARIES
Sam may have an agreed boundary line he can point to for his claim that the ten feet are rightfully his.
An agreed boundary is one agreed upon in years past to settle a difference or dispute over the true location of the property line. If there is an existing fence along what Sam thinks is the property line, it may that the previous neighbors had this same dispute years ago, and agreed that the boundary line would be where Sam thinks it is
He would need to show some past uncertainty as to where the line was and an agreement between the (then) owners of both sides that the fence was to be used as the property line. Sam wins if he can convince a court that this is the case.
If indeed the fence has existed and been used for some fifty years or more as the property line, that fact in itself may be enough evidence to show the agreement needed to prove the case.
Sam may need to track down previous owners, or their heirs, to make his case in court.
ADVERSE POSSESSION
If Sam can show he has used the property as if it were his own in an “open and notorious” manner, and that he has have paid the property taxes on it continuously for five years, he may be able to claim under adverse possession.
The payment of property taxes is the tricky part here. Chances are, if the neighbor’s survey is actually correct (and Sam should certainly have his own done, just to be sure), then it’s not likely he’s been paying taxes on the disputed portion.
However, if he can show everything but payment of the property taxes, he may have a good argument that he has acquired an easement over that portion of the property.
LOT LINE ADJUSTMENT
Does Sam’s neighbor really need the extra few feet? Or would he rather have an extra few bucks and give Sam a lot line adjustment. A lot line adjustment is a modification of a boundary line between two or more legal parcels. Sam will need to apply for this procedure through his local Planning Department, pay a fee and have a new legal description prepared. He also needs his neighbor’s written agreement to present his application.
Sam may also get his neighbor to let him use the property, or split the difference to avoid a protracted legal battle. Sam could obtain a “license” for use from the neighbor for this purpose.
If this happens to you, talk to your neighbor first. Find out what his needs are; then, if you can’t work it out amicably between you, a good real property attorney can advise you of your options.
Dotty E. LeMieux
Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County and can be reached at coastlaw@earthlink.net. (A version of this story first appeared in the Marin Scope Newspapers)
Monday, May 16, 2005
SELF HELP - A TRAP FOR THE UNWARY
TREES AND THE LAW: NEIGHBORS BEWARE!
Imagine you wake up one morning to find the neighbor’s tree has moved closer to your house. No, it didn’t get up and walk over the property line, but that limb you’ve been concerned about has sagged in the night, and now looks really menacing as it looms over your rooftop.
Is it ok to take a chain saw to it before it falls on your house?
The answer is not as simple as you might think.
Evolving Law
The California law on this issue has evolved over the years as cases interpret the statutes in place. Early common law granted a landowner absolute right over his property to the center of the earth and the sky. However, the advent of airplanes had a tempering effect on that idea. Similarly, early case law dealing with trees suggested that you had an absolute right to remove limbs from your neighbor’s tree if they encroached on your land.
Later cases clarified the issue to apply a rule of reasonableness. Does the overhanging limb poses a threat to your property? If so, you must consider the damage your actions will have on the tree itself. The long and short of it is that you may cut the overhanging limb (or even trim back encroaching tree roots) but you must do so in a way that does not damage the underlying structural integrity of the tree.
The tree owner is ultimately responsible for damage caused by his tree if he has reason to know it is a hazard. And don’t think ignorance is bliss. A property owner has a duty of care to maintain his property so as not to create a nuisance for others. If you have put your neighbor on notice that the tree poses a danger (and it may take the town arborist or a private tree service to evaluate the tree and issue a report), and he takes no action and the limb falls, he is responsible for the damage caused.
Even without an arborist’s report, the property owner is supposed to exercise reasonable diligence in the maintenance of his trees so they don’t become nuisances to others. What this reasonable diligence consists of is the stuff of all these court cases we’ve been discussing. In California, there really is no “Act of God” defense.
Don't Litigate - Mediate
Before you hire your own expert, however, try talking with your neighbor about your concerns. Perhaps he is unaware of the danger his tree poses, or hasn’t noticed the messy debris it’s been dropping all over your nice lawn, and he’ll agree to take better care of it. Maybe you and he can share the cost of the upkeep. If the tree is on the boundary line, that is, part of the trunk grows on either side of the property line, you may be jointly responsible for its upkeep.
You might also contact a local mediation service or consult with your city or County for local ordinances that might help you get some relief. Many cities have codes protecting certain species of trees as “Heritage” trees. These vary widely; some towns consider only the size of the tree. Others specify which trees are to be protected. For those trees, a permit to remove the tree is required unless an emergency is declared by a public official.
In Oakland, protected trees are “On any property, Quercus agrifolia (California or Coast Live Oak) measuring four inches dbh (diameter at breast height (four feet) or larger, and any other tree measuring nine inches dbh or larger except Eucalyptus and Pinus radiata (Monterey Pine).” (Oakland Municipal Code section 12.36.020.) Strict permitting requirements exist for removing any of these protected trees and even the non-protected trees are regulated in development situations or on City owned property.
Other towns permit emergency cutting without official permission, but be sure you check first. If it’s a problem with solar access or views, each community has its own set of rules governing those issues as well.
Crossing the Line
One thing you must never do is go onto the neighbor’s property without permission to take action on a tree problem. That’s more than self-help, it’s timber trespass and you may well find yourself liable for triple the cost of the damage to the trees. If the dispute is over views, shade or annoying leaves on the ground, your position will particularly untenable. Because people have a special relationship with their trees, the courts sometimes even allow for the recovery of emotional distress, if the damage done was egregious. If you clear cut your neighbor’s oak forest to create a view for yourself, don’t look for sympathy from a jury.
Trees can pose a thorny thicket or a shady shelter, depending on your vantage point. Remember the poet’s adage: “Good fences make good neighbors.” The same can hold for trees.
Dotty E. LeMieux
Dotty E. LeMieux practices tree and other aspects of property, environmental and neighbor law in the Bay Area, and can be reached for consultation at coastlaw@earthlink.net.
Imagine you wake up one morning to find the neighbor’s tree has moved closer to your house. No, it didn’t get up and walk over the property line, but that limb you’ve been concerned about has sagged in the night, and now looks really menacing as it looms over your rooftop.
Is it ok to take a chain saw to it before it falls on your house?
The answer is not as simple as you might think.
Evolving Law
The California law on this issue has evolved over the years as cases interpret the statutes in place. Early common law granted a landowner absolute right over his property to the center of the earth and the sky. However, the advent of airplanes had a tempering effect on that idea. Similarly, early case law dealing with trees suggested that you had an absolute right to remove limbs from your neighbor’s tree if they encroached on your land.
Later cases clarified the issue to apply a rule of reasonableness. Does the overhanging limb poses a threat to your property? If so, you must consider the damage your actions will have on the tree itself. The long and short of it is that you may cut the overhanging limb (or even trim back encroaching tree roots) but you must do so in a way that does not damage the underlying structural integrity of the tree.
The tree owner is ultimately responsible for damage caused by his tree if he has reason to know it is a hazard. And don’t think ignorance is bliss. A property owner has a duty of care to maintain his property so as not to create a nuisance for others. If you have put your neighbor on notice that the tree poses a danger (and it may take the town arborist or a private tree service to evaluate the tree and issue a report), and he takes no action and the limb falls, he is responsible for the damage caused.
Even without an arborist’s report, the property owner is supposed to exercise reasonable diligence in the maintenance of his trees so they don’t become nuisances to others. What this reasonable diligence consists of is the stuff of all these court cases we’ve been discussing. In California, there really is no “Act of God” defense.
Don't Litigate - Mediate
Before you hire your own expert, however, try talking with your neighbor about your concerns. Perhaps he is unaware of the danger his tree poses, or hasn’t noticed the messy debris it’s been dropping all over your nice lawn, and he’ll agree to take better care of it. Maybe you and he can share the cost of the upkeep. If the tree is on the boundary line, that is, part of the trunk grows on either side of the property line, you may be jointly responsible for its upkeep.
You might also contact a local mediation service or consult with your city or County for local ordinances that might help you get some relief. Many cities have codes protecting certain species of trees as “Heritage” trees. These vary widely; some towns consider only the size of the tree. Others specify which trees are to be protected. For those trees, a permit to remove the tree is required unless an emergency is declared by a public official.
In Oakland, protected trees are “On any property, Quercus agrifolia (California or Coast Live Oak) measuring four inches dbh (diameter at breast height (four feet) or larger, and any other tree measuring nine inches dbh or larger except Eucalyptus and Pinus radiata (Monterey Pine).” (Oakland Municipal Code section 12.36.020.) Strict permitting requirements exist for removing any of these protected trees and even the non-protected trees are regulated in development situations or on City owned property.
Other towns permit emergency cutting without official permission, but be sure you check first. If it’s a problem with solar access or views, each community has its own set of rules governing those issues as well.
Crossing the Line
One thing you must never do is go onto the neighbor’s property without permission to take action on a tree problem. That’s more than self-help, it’s timber trespass and you may well find yourself liable for triple the cost of the damage to the trees. If the dispute is over views, shade or annoying leaves on the ground, your position will particularly untenable. Because people have a special relationship with their trees, the courts sometimes even allow for the recovery of emotional distress, if the damage done was egregious. If you clear cut your neighbor’s oak forest to create a view for yourself, don’t look for sympathy from a jury.
Trees can pose a thorny thicket or a shady shelter, depending on your vantage point. Remember the poet’s adage: “Good fences make good neighbors.” The same can hold for trees.
Dotty E. LeMieux
Dotty E. LeMieux practices tree and other aspects of property, environmental and neighbor law in the Bay Area, and can be reached for consultation at coastlaw@earthlink.net.
Wednesday, May 11, 2005
Land Use News Launch
Welcome to the Land Use News!
This is an informative site for news about land use issues for attorneys and lay people alike.
I will post articles I write and publish elsewhere and info on interesting cases.
If you'd like to post, feel free to add to Comments.
Here is the first article, initially published in the Marin Scope Newspapers:
WHEN YOU CAN'T SEE THE FOREST FOR THE TREES - Literally
"Every body does not see alike.... The tree which moves some to tears of joy
is in the Eyes of others only a Green thing that stands in the way." (from
The Complete Writings of William Blake (1957) p. 793.)
Homeowners have a love-hate relationship with trees.
We all appreciate the sheltering arms of our own well tended amenity trees; we nurture Heritage Oaks and cherish our prized Japanese Maple.
But what do we do when our neighbor's trees become a nuisance, blocking views of
distant hills, ocean or forests?
Trees are living organisms. They can grow to be unwieldy straggly things that drop
their branches all over, threaten to fall on unsuspecting bystanders, or plop their
bulk squarely in your viewshed.
If you are like many Bay Area homeowners graced with hillside or coastal living,
you probably know just what I'm talking about. Your view of the ocean, never more
than a precious triangle to begin with, may now all but obscured by some runaway
Eucalyptus trees two streets over.
Your view of the peak of Mt. Tamalpais is shrinking behind scruffy delinquent pines
on the lower slopes. You bought your Lake Tahoe home for the view of the silvery
water edged with softening pine trees along the shore, but now that view has been
commandeered by renegade Cypress who have no business in the neighborhood in the
first place.
What's a law-abiding homeowner to do? Here are a few potential remedies for the
most common view versus tree problems.
Can the Trees be Considered a "Spite Fence?"
California law recognizes that a "fence or other structure in the nature of
a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained
for the purpose of annoying the owner or occupant of adjoining property is a private
nuisance." (From California Civil Code Section 841.4 - Maliciously Erected
Fences)
Courts have decided that a row of trees if planted for the purpose of annoying the
neighbors can be considered a structure for purposes of enforcing this statute.
Such a structure is commonly known as a "spite fence."
Spite fences reached a height of notoriety when in the 1870's, Charles Crocker wanted
to buy a whole city block on Nob Hill to build his mansion. One neighbor refused
to sell. Crocker simply bought all the land around the holdout landowner and
built a 40 feet high fence, surrounding the property. No laws protected the hapless
property owner in those days, and he eventually caved in and sold to Crocker.
In a recent case in the town of Yreka, the Third District Court of Appeal said yes,
a row of trees planted to block a neighbor's view could be seen as a spite fence
and be deemed illegal. (See Wilson v. Handley (2002) 97 Cal.App.3d 1301.)
If your dispute gets to a court, the intent of the neighbor planting the trees becomes an issue. If a court determines that the purpose of the planting is to mark the boundary line and to annoy the neighbors, then the court could reasonably conclude that the trees "unnecessarily" exceed 10 feet in height.
Is there a view Ordinance in Your Town?
Many towns have ordinances setting forth standards for maintaining views. There
is no general California law about views. Some towns cherish certain trees such
as Redwoods and have strict guidelines for their removal or even trimming, while
others see them as nuisances, interfering with neighbors' views of Bay or hillsides.
In Marin County, the Town of Tiburon leads the way with the most protective ordinance.
It provides in part:
"The Town recognizes that certain types of trees, because of potential breakage
and fire hazards, or their potential for creating view blockage due to rapid growth
and tall height at maturity, should be prohibited from being planted without special
permission. These trees are referred to as 'undesirable trees.'"
You need to check with your town planning department to see what the rules are.
They are often posted on line. In those cases where view ordinances exist, there
is often a "tree committee" who you can appeal to; don't forget that many
towns and counties have mediation boards whose services are available for a nominal
fee, before you get into a full bore hearing, hiring attorneys and ending years
of peaceful coexistence with your neighbors.
Covenants, Conditions and Restrictions
Are you in a planned development with a set of covenants, conditions and restrictions
that control what homeowners can and can't do with their trees in terms of obstructing
neighbors' views? If so, you may be able to get your neighbor to trim his trees
to restore your lost view. Check with your homeowners' association to see what the
process is in your particular development.
By consulting skilled arborists, you can often set up a plan for "windowing"
the offending trees, so that the neighbor keeps his privacy and shade, while you
get your view back. If no ordinance or cc&r's cover your situation, offer to
pay for professional trimming to restore your view. Even if you do have an ordinance
in play, consider working cooperatively with the neighbor first, before resorting
to hearings or the courts. The cost will be small to maintain cordial relations
and enjoy your view at the same time. Invite the neighbor over to enjoy the view
with you over a glass of wine or cup of coffee as a thank you.
copyright Dotty E. LeMieux
Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County, California, and can be reached at coastlaw@earthlink.net.
This is an informative site for news about land use issues for attorneys and lay people alike.
I will post articles I write and publish elsewhere and info on interesting cases.
If you'd like to post, feel free to add to Comments.
Here is the first article, initially published in the Marin Scope Newspapers:
WHEN YOU CAN'T SEE THE FOREST FOR THE TREES - Literally
"Every body does not see alike.... The tree which moves some to tears of joy
is in the Eyes of others only a Green thing that stands in the way." (from
The Complete Writings of William Blake (1957) p. 793.)
Homeowners have a love-hate relationship with trees.
We all appreciate the sheltering arms of our own well tended amenity trees; we nurture Heritage Oaks and cherish our prized Japanese Maple.
But what do we do when our neighbor's trees become a nuisance, blocking views of
distant hills, ocean or forests?
Trees are living organisms. They can grow to be unwieldy straggly things that drop
their branches all over, threaten to fall on unsuspecting bystanders, or plop their
bulk squarely in your viewshed.
If you are like many Bay Area homeowners graced with hillside or coastal living,
you probably know just what I'm talking about. Your view of the ocean, never more
than a precious triangle to begin with, may now all but obscured by some runaway
Eucalyptus trees two streets over.
Your view of the peak of Mt. Tamalpais is shrinking behind scruffy delinquent pines
on the lower slopes. You bought your Lake Tahoe home for the view of the silvery
water edged with softening pine trees along the shore, but now that view has been
commandeered by renegade Cypress who have no business in the neighborhood in the
first place.
What's a law-abiding homeowner to do? Here are a few potential remedies for the
most common view versus tree problems.
Can the Trees be Considered a "Spite Fence?"
California law recognizes that a "fence or other structure in the nature of
a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained
for the purpose of annoying the owner or occupant of adjoining property is a private
nuisance." (From California Civil Code Section 841.4 - Maliciously Erected
Fences)
Courts have decided that a row of trees if planted for the purpose of annoying the
neighbors can be considered a structure for purposes of enforcing this statute.
Such a structure is commonly known as a "spite fence."
Spite fences reached a height of notoriety when in the 1870's, Charles Crocker wanted
to buy a whole city block on Nob Hill to build his mansion. One neighbor refused
to sell. Crocker simply bought all the land around the holdout landowner and
built a 40 feet high fence, surrounding the property. No laws protected the hapless
property owner in those days, and he eventually caved in and sold to Crocker.
In a recent case in the town of Yreka, the Third District Court of Appeal said yes,
a row of trees planted to block a neighbor's view could be seen as a spite fence
and be deemed illegal. (See Wilson v. Handley (2002) 97 Cal.App.3d 1301.)
If your dispute gets to a court, the intent of the neighbor planting the trees becomes an issue. If a court determines that the purpose of the planting is to mark the boundary line and to annoy the neighbors, then the court could reasonably conclude that the trees "unnecessarily" exceed 10 feet in height.
Is there a view Ordinance in Your Town?
Many towns have ordinances setting forth standards for maintaining views. There
is no general California law about views. Some towns cherish certain trees such
as Redwoods and have strict guidelines for their removal or even trimming, while
others see them as nuisances, interfering with neighbors' views of Bay or hillsides.
In Marin County, the Town of Tiburon leads the way with the most protective ordinance.
It provides in part:
"The Town recognizes that certain types of trees, because of potential breakage
and fire hazards, or their potential for creating view blockage due to rapid growth
and tall height at maturity, should be prohibited from being planted without special
permission. These trees are referred to as 'undesirable trees.'"
You need to check with your town planning department to see what the rules are.
They are often posted on line. In those cases where view ordinances exist, there
is often a "tree committee" who you can appeal to; don't forget that many
towns and counties have mediation boards whose services are available for a nominal
fee, before you get into a full bore hearing, hiring attorneys and ending years
of peaceful coexistence with your neighbors.
Covenants, Conditions and Restrictions
Are you in a planned development with a set of covenants, conditions and restrictions
that control what homeowners can and can't do with their trees in terms of obstructing
neighbors' views? If so, you may be able to get your neighbor to trim his trees
to restore your lost view. Check with your homeowners' association to see what the
process is in your particular development.
By consulting skilled arborists, you can often set up a plan for "windowing"
the offending trees, so that the neighbor keeps his privacy and shade, while you
get your view back. If no ordinance or cc&r's cover your situation, offer to
pay for professional trimming to restore your view. Even if you do have an ordinance
in play, consider working cooperatively with the neighbor first, before resorting
to hearings or the courts. The cost will be small to maintain cordial relations
and enjoy your view at the same time. Invite the neighbor over to enjoy the view
with you over a glass of wine or cup of coffee as a thank you.
copyright Dotty E. LeMieux
Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County, California, and can be reached at coastlaw@earthlink.net.
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