Hello!

Have I got a story for you (my guess is that you've heard
something like this before...)

I live in Portland, Oregon.

The people who own the property adjacent to mine are
in the process of selling thier large lot. They hope
to sell it to a builder (Danger! Danger! - the little
voice inside of me screams...). On my property, 4' away
from the property line is a 60-70' Pseudotsuga menziesii
(Douglas Fir). The property to be sold is east of the Fir,
my garage and house are west and under the fir.

I grew concerned as I thought of the invading backhoes, damaged
roots - all that fill!!! (the potential loss of all the trees
I have adjacent to the property line...). I wanted to know how I
could protect my trees (and my house...). I called every government
officials office and I was promptly told every single time that
I (my trees) have no rights where this is concerned. I was also told
such things as "the roots, if on the property to be developed,
do not belong to you - it belongs to them" as well as "get a lawyer".

From what I have found out, my choices are to get an easement,
convince my neighbors to have a lot-line adjustment, or politely
advise the builder that if any damage is done to my trees I am prepared
to sue.

I personally feel that my trees should be protected!!

Any comments (or more venting) will be most appreciated!!!

Sue "I'm pissed off and I'm going to sue city hall" Rosemarin

Reply to post by Sue, on February 03, 1999 at 20:15:04:

Sue, in addressing your questions certain facts need to be established.

Are you actually in the city limits of Portland? (Milwaukie,Beaverton, Lake Oswego,etc.) It will make a difference in the final advisement given.

Before you spend a lot of money in a lawsuit with the city, I recommend the following course of action:

1.) Hire a consulting or *certified arborist to perform a thorough examination of the tree's current health and structural soundness of its root system, bole, canopy and soil analysis.

2.) Request, a written report and an appraisal of the same tree.

3.) Contact your insurance company and request specific information relating to liability should the tree fail. Make this information available to the arborist you hire.

Portland does have certain stipulation's governing development of un- or underdeveloped lands. Development effecting adjacent lands is a gray area, however, still falls under the Urban Forest Management responsiblity plan developed in 1995.

Sue, If I can be of further assistance. I perform the work mentioned above or can recommend others in your area. Please contact me.

Stephen Wiley
ufs@navicom.com
1-503-873-6378

Reply to post by Stephen Wiley, on February 03, 1999 at 20:15:04:

Thanks Stephen!

Actually, I am a certified arborist in the Portland area
and the health of the Fir is questionable (it had spruce spider mites last year,
and does have borers) -

Which is among the reasons I am so concerned! - There is a proposal
in the planning stage which addresses the canopies of trees on
adjacent property, but not the roots.

I've got a call into the woman in charge of writing the proposal
but I haven't heard from her yet.

I would prefer to prevent the situation, instead of being prepared
if the tree does happen to fall.

Thanks again!

Sue

Reply to post by Sue, on February 03, 1999 at 23:09:07:

...oops - sorry for the grammatical errors! I get up
early and I'm pretty tired...

Sue

Reply to post by Sue, on February 03, 1999 at 23:09:07:

Sue, my suggestions were intended to be preventive in the planning stages. However, "What if" prepardness can be utilized in emphasizing root zone protection measures.

Portland's URBAN FORESTRY MANAGEMENT PLAN, Adopted by the City Council June 28, 1995, Effective July 28, 1995, Ordinance No. 168979, pg. 74, sub topic "Goals and Actions" states: "Goal 1. Provide clear regulations to protect existing urban forest as development occurs."

In the "actions:" section flexability to cover such issues, seems to be addressed in the use of terms as: "...adjust as needed." and "Develop new code requirements if needed."

Good Luck with the planning commission, let us know how it proceeds.

P.S. If you have'nt signed the guest book here, please do so, curious to know more about your work as a certified arborist.

Sincerely, Steve

Reply to post by Sue, on February 03, 1999 at 20:15:04:

Stephen's advice is well taken. Document current conditions especially re: structural soundness of the root system and resistance to lateral forces like wind from the East. Make sure the developer, the governing agency and subsequent owners are on notice and that they may all be liable for damages resulting from any changes in that baseline condition. Even if they think they understand their rights to cut those roots make them understand they will have to defend against your suit. (Your insurance company's suit if big time property damage or personal injury...they have deeper pockets than you do.)

If it ever comes to court, you'd be better off having an Independent opinion on the tree's condition in addition to your own. "Your honor, this witness is not impartial, she's serving her own interest in this case, how can the court believe her opinion with regard to the tree's condition before the alleged damage?"

Research a fairly recent California case called Patel v. ?? Had to do with this sort of roots over property line situation. May be useful precedent.

Scott

Reply to post by Scott, on February 03, 1999 at 20:15:04:

Stumbled on a partial write up on Patel (but no citation) in Merullo, Victor D. 1994. "Comon Law Branches off into New Directions." Journal of Arboriculture. 20(6):341-343. (November)

Reply to post by Sue, on February 03, 1999 at 23:09:07:

Sue, the one thing that occurred to me-

Has the property been sold yet? Can you talk the neighbor into putting in a caveat that the trees at the boundaries be protected, according to a qualified (independent) arborist? That puts the developer on notice right from the start.

Second suggestion- go straight to the developers with your concerns. Tell them the problem, and be prepared to offer solutions. Protection of root zones, etc. You might be surprised how far you get, especially if you suggest the newspapers and media probably won't report on saved trees, but would love a story about them disregarding the environment.

Reply to post by Russ Carlson, on February 03, 1999 at 23:57:28:

Thanks for all of your responses!

Russ, I liked your idea about preserving the boundary trees,
I'll ask them, but I think their goal is to sell the property for
as much as possible (which is why they would prefer a builder buys it).

I'm already trying to get in touch with a reporter I know who writes
articles about plants and gardening, I figured that it would be a good start,
and will at least give this problem some exposure. Here in Portland we have
an urban growth boundary, which recently has been expanded due to the
influx in population. I feel that I can't be the only one who is facing (will face)
this situation - perhaps this will wake some people (namely in the city
government up).

Thanks again!

Sue

Reply to post by Sue, on February 03, 1999 at 20:15:04:

Sue, I have never heard that spiders threaten a Dfir.
I would be happy to work with with you and Wiley tyo protect this tree (given that it is not junk).
I have a similar concern in Portland OR- my Wredcedar is just my side of the property line and the next house is a scraper, so I have the concerns you do. I am trying to get the tree labeled a Heritage Tree- even though it is only about 60 years, and the ordinance is vague enough that it might work, and I know another person nearby with the same concerns.
I live in Multnomah Village- where are you? Shall we get serious about the protection of tree roots? I would have no problem whatsoever in a lawsuit against anyone cutting the roots of my tree, regardless of private property rights. In fact, violence might be legal in a case like that to protect one's property.

Reply to post by Sue, on February 03, 1999 at 20:15:04:

Going through all the posts to date, there's maybe a big picture to be clarified here. We all (obviously) are concerned about saving savable trees by utilizing appropriate measures.

But let's not get carried away with eco-terrorism.

The private property rights exist on both sides. There may be an emerging common law duty to act reasonably with regard to ecroaching roots from a neighbor's tree (Patel), but that does not necessarily override another property owner's right to use and enjoyment. Paul Davis pointed out in one of these topics that on small sites there may be no real option to establish root protection zones. Sue has not talked about the size of the site.

If the state or local community were to limit private property rights by saying "you can't develop if you impact someone else's trees" and investments had been made with an expectation of economic return, then economic compensation would need to be made. Will they be prepared to buy up all those lots a market$ to protect boundary trees?

They can sue back just as much as you can. Be prepared to buy the property if you really want that tree's root system.

Knowledge is the key. Of what can and cannot be done. Of what can be reasonably expected. There is a big difference between callous self interest and lack of regard for neighbors and real constraints that don't allow choices.

Reply to post by Peter Torres, on February 03, 1999 at 20:15:04:

I'm there Peter! I live in Multnomah county,
(I think I know you, I worked at Portland Nursery for 10 years).

I'm serious about this and would love to talk more- and yes, I have
considered the possiblility that I may have to resort to barricading myself
to the trees roots?! - er, maybe not, but something!

e-mail me, lets chat!

Sue

Reply to post by Scott, on February 03, 1999 at 20:15:04:

Scott,

I have an almost double lot, and they (next door) have an almost
quadruple lot, which can be subdivided into two dwellings.

I am not looking to force the buyers into doing anything, or infringing
upon their rights, I would just like to protect the rights of my
trees and property.

Sue

Reply to post by Sue, on February 03, 1999 at 20:15:04:

Often it's awkward and distasteful to do it, but try to put yourself in the developer's shoes. Most reasonable people (and some builder/developers do fall into this catagory) will listen if there are constructive suggestions about how to minimize the impact or mitigate the damage. All who have worked with construction projects recognize that many trees are lost to intractable bureaucratic mumbo-jumbo. It's very important to get going early in the project before things are set in stone, and to have a creative arborist involved.

If all that is forthcoming is carping and threats, most folks, including reasonable ones, tune it out. Furthermore, if push comes to shove, it's helpful in court to be able to demonstrate that you were the reasonable person, and that the developer was the SOB who wouldn't budge to give the tree a chance.

Reply to post by Ed Milhous, on February 03, 1999 at 20:15:04:

I've got a plan...

After speaking to yet another city planner (real nice, but her
hands are tied) and finding out it was a dead end, I've decide to try to
take some positive action, but I need your help.

What I need is some sort of documentation on situations such
as mine - situations whereby constrution damage to trees was
done to properties adjacent to those on which the construction
occurred. Then I plan on convincing some local arborists (hey
Stephen and Peter, are you reading?) to come with me and the
wealth of documentation I have recieved to the City council
meeting in April.

Hey, who knows, maybe we can set a precedent(sp?) for the
rest of the country!

So, if you have anything related, and you feel like sending it
to me, can you email me so that I can give you my address?

Thanks for all the help you've given, and your wise words of
advice!

Sue

Reply to post by Scott, on February 03, 1999 at 20:15:04:

>>If the state or local community were to limit private property rights by saying "you can't develop if you impact someone else's trees" and investments had been made with an expectation of economic return, then economic compensation would need to be made. Will they be prepared to buy up all those lots a market$ to protect boundary trees?

Once such limits were imposed, most often cases like these would be "grandfathered", or left to the former regulation. In cases of new property sales, like it or not, the buyers would be aware of the necessity to take precautions for neighboring trees.

I am currently working on revisionis to a township ordinance in Pennsylvania, where trees on neighboring properties were overlooked the first time around. trees on a property being developed are protected, but not those on the next lot. A few developers figured this out, so they ignore the other trees, and file for permits one at a time, instaead of all at once.

Reply to post by Sue, on February 05, 1999 at 09:51:53:

Add this to your plan-

Since the development is apparently intended as residential buildings, find out who the buyer is immediately after sale of the property, or even ask to talk to them before the sale, if you can. AS has been pointed out several times, you may just find a willing ear.

With residential lots, there may be ways to protect the trees and still allow the construction to continue. Is there room to keep some distance? What protection and remedial treatments might be in order?

Going to City Council is a good idea, but may not be in time for your tree. Work on both aspects.

Reply to post by Russ Carlson, on February 05, 1999 at 18:43:18:

And if the buyers are amiable, convince them to join you in the petition to city hall to set ordinace and tree law in your municipality.

Reply to post by Russ Carlson, on February 05, 1999 at 07:53:05:

Yes, I think that's generally the case as long as the new restriction is applied uniformly, jurisdication wide and not on a discriminatory, property by property basis. (I think the relevant case law is US Supreme Court in Nolan v CA Coastal Commission). You might run into pre-emption issues if a local ordinance usurps state authority or exceeds state enabling legislation. I'd also be interested to re-read the recent case law on wetlands and just compensation. But generally, I think you're right.

Reply to post by Sue, on February 03, 1999 at 20:15:04:

Sue, besides exploring the Heritage tree option, we should look into the right of an abutter to cut branches. If the abutter is not allowed to cut branches in such a way that the tree is damaged or compromised, then the same should be true of roots, by analogy. If there is not a legal precedent, I would be very surprised. It is a matter of finding it.
I have a report and photos of damage in Douglas-fir trees that quite obviously comes from trenching done in the past (up to 12 years ago). Such bad progressive decay that the trees are now hazardous. Perhaps I can turn that report into something to show the council meeting? Peter