| Trees and their neighbors |
Earlier today I read a blog post by an attorney in Sonoma County, Debra Newby. Below is the response I sent to her. You may read her original post here: http://www.westcountygazette.com/blog/2008/12/shark-bait-answers-to-legal-questions.html
Hello Debra Newby.
I'm a Certified Arborist in the state of Washington, and I have the keyword "arborist" flagged for google alerts, so I read your article with interest this morning. It is really quite informative. Frequently I have clients with concerns about trees near property lines, and I often advise them about the science of tree hazard evaluation and risk management, but at the same time I remind them that I am not an attorney. You have answered some questions which I would not have, and I will be keeping the link to your article handy for future reference.
Do to the fact that I promote tree preservation, I often get clients who would prefer not to cut their trees down. Invariably they live next door to people who tend to fear and distrust trees in general, and especially when the wind howls through the branches.
It has been my observation that people who have an emotional attachment to trees tend to keep them around longer than is really prudent, and people who fear and distrust trees tend to change the character of forested communities. As a result I find that the science tends to oppose what people would prefer to do, more often than not.
Nonetheless, there are tangible benefits to forested communities (amenity value of trees), and the fear of liability tends to diminish the natural resource. I live in a county with no tree preservation requirements, and find that it is very difficult to help people to protect the trees on their own properties from the actions of developers on neighboring properties. Specific examples include ruinous damage to root systems, altering wind patterns sunlight and drainage, and placing real property into the target zone for historic trees with some decay.
Your article gives advice to people who may wish to limit their liability, but I think you have underemphasized the interests of people who value their trees as living assets of the land.
There are several ways to protect trees responsibly.
It is a matter of urban myth that it is good policy to send a letter to all your new neighbors about each and every tree on their property, just in case. I've known people who had trees that they really cared about removed for no good reason except that a neighbor complained to them.
You suggested that people should inspect their property. A very good idea as a matter of the duty of care. Taking a careful look is something we would expect of a reasonably prudent person.
However, a trained arborist can help more with the inspection then just coming with chain-saws and chippers after the worried homeowner has made a decision.
Many tree service companies offer "free consultations" with an "arborist." These are sales calls from a service which sales the service of cutting trees.
There is a more valuable service, a paid consultation from a consulting arborist. The International Society of Arboriculture vets, tests, and requires continuing education for "Certified Arborists." (The term "Certified Arborist" is a registered trade name which the ISA licenses for use by individuals in good standing.) You can find a Certified Arborist using the "find an arborist" tool on the ISA website: http://www.isa-arbor.com/findArborist/verifyArbByPostal.aspx There are many Certified Arborists who provide tree health and hazard evaluations, along with educational consultations, as a stand alone service; a service of information and professional opinion.
The American Society of Consulting Arborists has a much smaller number of Registered Consulting Arborists. These are the people you would want to call upon for expert witness testimony, should a situation lead to litigation.
Communities can help take the burden of worry about liability from individual homeowners by passing tree preservation rules in the CCR's of homeowners agreements, as a matter of contract law; or as laws, as a matter of zoning code. Some individual trees may be protected as historical features, or as habitat for endangered species. These are all tools useful to communities to protect the value of trees as a commonwealth resource from the forces of fear or greed which drive individual decisions to eliminate even manageable, low risk trees; or which drive developers to maximize their own short-term profits at the expense of the common good.
Michael J Swassing
ISA Certified Arborist
A Natural Gardener
(206) 841-5954
Dec 13, 2008
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