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The law directs residents aggrieved by obstructive trees to first try to work things out with their owners, as neighbors would in the absence of such a rule. Failing that, they may appeal to the city to force the trees’ removal. In the first such case filed, concerning a hedge that had grown into a tree-sized wall of green, the parties “did what the vast majority of folks in Clyde Hill do,” says city manager Mitch Wasserman: They settled before the Clyde Hill Board of Adjustment reached a decision. “I think they did some trimming.” In the next case, the board ruled in the tree’s favor.
Last month, at a hearing at which one of its members was absent but called in by intermittent cellphone, the Board of Adjustment voted 3-2 that Baker must remove his trees or be in criminal violation. He has anguished since over how to respond. He still cherishes the pines and thinks the ruling unreasonable. Worse yet, it would set what arborist Tina Cohen, whom Baker retained, calls “a terrible precedent,” once the Board of Adjustment enters its formal “findings and conclusions” (expected any day now). “I’m worried that it will create a hunting license for people to move into the city and start taking out the trees of their neighbors, who were there long before them," says Baker. "A lot of my neighbors like the beautiful older trees. Several have valuable older trees themselves. They don’t want to see them endangered. People from around the region have urged us to save the trees and avoid the bad precedent.
“But the main thing is, I want is peace in our neighborhood. I really wish our neighbors could be happy in their house, and be happy with the view they have.”
To that end, and to forestall an official precedent, Baker hired Seattle attorney David Brenner to offer a settlement. (Disclosure: Brenner is also an attorney for Crosscut.) That settlement wouldn’t save the pine, but it would preempt the written findings and "terrible precedent." Under its terms, the Bakers would concede Olerud’s nonnegotiable demand to remove the trees. The Oleruds would pay the cost of removal (as specified in the Clyde Hill ordinance), the cost of transporting and installing smaller replacement trees, and the value of the pine and fir as appraised by arborist Cohen: $23,800.
In addition the Oleruds would have to pledge not to seek the removal of any other trees in Clyde Hill, including a smaller cedar on Bakers’ property, and not to help any other residents try to get trees removed. Finally, as a “good faith request” and “a ‘tithe’ on the extraordinary increase in their property value [per their expert's appraisal] from the removal of the Bakers’ trees,” the Oleruds should donate $25,000 to a charity of their choice. The net cost of this settlement would still be only about a fifth of that projected increase.
Brenner’s settlement letter, which was provided by Cohen, also lays out the argument Baker would use if the adjustment board does enter its findings and he appeals (first to the Clyde Hill City Council and then, if necessary, to the courts): First, the board misinterpreted and misapplied the View Obstruction and Tree Removal Ordinance. But the bigger problem is that law itself: it "is not a ‘view preservation’ ordinance but a ‘view creation’ ordinance.” It boosts landowners’ property values “at the cost of a substantial private burden on their neighbor, while providing little if any apparent public benefit.” This constitutes a “taking” of property without just compensation, which is forbidden by the Fifth Amendment to the U.S. Constitution. Clyde Hill “in essence has deputized the Oleruds to design their perfect view at the Bakers’ expense, and has ceded its condemnation authority to them to support their efforts.”
This, Brenner notes, presents “a highly unusual alignment of environmental concern and private property rights.” Tree-huggers and libertarians of the world, unite! You have nothing to lose but your chainsaws.
“From a lawyer’s point of view this case presents some fascinating issues,” Brenner added in an interview. “I think the city has really gone out on a limb with this ordinance.” If so, it doesn’t look as though Baker and Olerud will throw it a rescue line. Baker and Brenner say that Olerud’s attorney, Joseph McIntosh, told them he’s not interested in settling; he’d rather let the legal process play itself out. Reached by phone, McIntosh declined to comment on the case. So did Olerud when approached at his home. Baker likewise did not want to discuss the impasse but conceded to after two Crosscut writers, unbenownst to each other, approached him about it.
And so the case of the Chinese pine and the million-dollar view seems to be on its way to a more contentious and costly resolution in a higher court. Will it add to the ever-evolving body of takings case law? Other municipal authorities struggling to balance the allure of views and the benefits of trees are already taking note. Everett is in the process of amending its own much more tree-friendly law. Officials then want to make it easier for owners of properties designated “critical areas” to prune and replace view-blocking trees. Aggrieved neighbors would then have a chance to beg or pay owners to remove them.
These revisions were prompted by “rampant” cases of “illegal cutting, not only on owners’ property but on other people’s,” says Allan Giffen, Everett’s planning and community development director. “We had a lot of problems with weekend warriors going out and cutting trees when we didn’t have any inspector on duty.”
Still, says Giffen, “we’re not going to enforce views. We’re not going to do the John Olerud deal —make the city the blunt instrument for residents who don’t like neighbors’ trees.”
But he spares a little sympathy for his counterparts along Lake Washington: “I imagine if our properties were as valuable as property in Clyde Hill, we’d have more pressure to open up views."
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