Crosscut

Clyde Hill kerfuffle: John Olerud's big view vs. the preacher’s pine tree

Tree-hugging and property rights converge, as a settlement is offered in vain and a legal showdown looms over Clyde Hill's constitutionally questionable view-protection law. How many more trees will fall if this one does?

By Eric Scigliano

December 26, 2012.

The tree has stood in its spot for more than 50 years. It is about 40 feet tall, but its spreading, twisting side branches make it look bigger. It looks both ragged, thanks to a recent thinning, and exotic, which it is. It’s a Chinese red pine, Pinus tabuliformi, a species classed as “very rare” on this continent in Arthur Lee Jacobson’s Trees of North America. “I don’t think I’ve ever seen another one,” says John Hushagan, a veteran arborist who recently pruned it.

According to Hushagan and another arborist who examined the Chinese pine, it’s in “great shape.” It does not impinge on public passage or endanger neighbors or passersby. Its owner, a technology entrepreneur and Microsoft manager-turned-Presbyterian minister and professor of business ethics at Seattle Pacific University named Bruce Baker, cherishes the shade and privacy it provides, as well as its rarity and its value, both material and intangible. “It’s a community value,” says Baker. “Trees provide many benefits, and not just to the owner. They give our neighborhood a distinctive natural beauty."

But the pine tree is doomed, if the City of Clyde Hill’s Board of Adjustment has its way. Last month that body decided that the pine and a Colorado spruce behind it are illegal and must be cut down, for one simple reason: They intrude on the otherwise wide-open view of the neighbor across the street, diminishing his enjoyment of the home he recently built and, not incidentally, its value.

The case wouldn’t likely have attracted so much attention if it didn’t have such a piquant human aspect, and if that neighbor weren’t a local sports legend: former Mariners first baseman and three-time Gold Glove winner John “Big Rude” Olerud, a veteran of a sport that likes its trees cut and shaped into swingable tapered sticks. Olerud and his wife moved to the site many years after the tree had grown up there, and stayed in the Bakers’ house for eight months while their own 6,680-square-foot home was being built.

In person, John Olerud and Bruce Baker seem like two of the nicest guys you'd ever hope to meet, and they share something else: their religious faith. At the adjustment board hearing on his petition, Olerud invoked the gospel injunction to “love thy neighbor as thyself.” At the same hearing, according to the Seattle Times, another neighbor told Baker he was “not very Christian” because he wouldn’t cut down his tree. He’d already thinned it, removed a smaller redwood on his property, and offered to remove the spruce in an attempt to mollify Olerud. He's visibly pained at being involved in a so far irreconciliable dispute.

At the hearing, Baker measured out aerial photos Olerud had provided and argued that the trees blocked just 9 percent of his 180-degree view of Lake Washington, Seattle, and the hills and mountains around them. Olerud, who leveled his formerly forested property and replaced its trees with a spacious lawn and tennis court, insisted that they left him only a 30-degree view to the west. He presented an appraiser’s finding that this decreased the value of his property by a whopping $255,000 — a rather large share of the $803,000 value at which King County assesses his 20,000 square feet, not counting improvements.

Unusual though the circumstances are, this is not just a case of (take your pick) a big rude sports star trying to sweep the field, or a tenacious athlete showing the same hustle he did in the majors. This piney tale is the latest flashpoint in a rolling conflict between two conflicting cherished values in the Puget Sound region: living nature and splendid “natural” views. It’s a conflict of classes, cultures and generations as well as values and pecuniary interests. And it’s growing more acute as trees planted decades or, in older neighborhoods, a century ago grow to their full stature, and as houses and property values on desirable view slopes like Clyde Hill’s likewise expand.

Now the tale is flipped on its head. In other local cities, landowners perennially complain about trees in parks and greenbelts blocking their views; sometimes they take the law and saw into their own hands. (In the most extreme example, a federal judge paid $618,000 in fines and interest after his immigrant gardeners cut down 120-plus trees in neighboring Colman Park to open up his lake view.) They grumble about being required to maintain unwanted trees in environmentally critical areas on their own property. In Seattle, some resent having to preserve jumbo-sized “significant trees” even outside those areas.

In Clyde Hill, however, the saw is in the other hand; its city code undertakes to make citizens cut down their trees for the sake of other citizens’ views, contrary to both tree-hugging and property-rights principles. This raises serious constitutional questions, which will play out if the two neighbors fail to settle and Baker appeals the adjustment board decision.

Clyde Hill is a community that takes the look of its properties and the views from them very seriously. According to one factoid that gets repeated so often it must be too good to be true, its citizens aren’t just the fourth-wealthiest in Washington but the tenth-largest employers, per capita, of landscaping services. They incorporated as a city just hours before adjacent Bellevue did, in order to escape Bellevue’s zoning and, presumably, the threat of creeping urbanization. 

Clyde Hill went its own way again nearly four decades later when it drafted an ordinance to protect its valuable views. Its code writers had to look far afield for models. Some local planned communities did include view protection in their covenants — most notably Innis Arden, the former Boeing family game estate (ironically named after the enchanting Forest of Arden of Shakespeare’s As You Like It), which Bill Boeing had logged and, in 1940, subdivided. In 1981 Innis Arden adopted particularly stringent view covenants, which mandate that any trees that might potentially block other lots’ Sound and Olympic views be cut or trimmed below rooftop level.

“For the most part, other than large trees that were grandfathered in or critical areas, the old trees have all been cut down,” laments arborist Hushagan, who happens to live in Innis Arden. This year, after a years-long legal battle with tree defenders (including both residents and the City of Shoreline), the Innis Arden Club cut down some 37 significant trees in a wooded common area to enhance the views of eight upslope homeowners. This month, says another arborist, Tina Cohen, it ordered a client of hers in Innis Arden to cut his Douglas firs back to the biologically absurd height of 15 feet.

Innis Arden's rules are covenants, private contracts, rather than laws, and so can go where public codes constitutionally cannot. Clyde Hill’s code drafters found models for their efforts in the less treecentric state of California, in particular the Bay Area town of Tiburon. But Clyde Hill goes farther than Tiburon, and its own neighbor Medina, which only protect views from neighboring trees planted after residents bought their properties. Clyde Hill's “View Obstruction and Tree Removal” ordinance, adopted in 1991, starts out extolling the cultural, environmental and inspirational values of both trees and views, then comes down for the latter: No resident may “grow or tolerate” any tree that “unreasonably obstructs the view or access to sunlight of a neighbor.” The only exception: if that tree was growing before 1953, when Clyde Hill was incorporated. The Chinese pine sprouted just a few years too late to be grandfathered in.

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."

Eric Scigliano's reporting on social and environmental issues for The Weekly (later Seattle Weekly) won Livingston, Kennedy, American Association for the Advancement of Science, and other honors. He has also written for Harper's, New Scientist, and many other publications. One of his books, Michelangelo's Mountain, was a finalist for the Washington Book Award. His other books include Puget Sound; Love, War, and Circuses (aka Seeing the Elephant); and, with Curtis E. Ebbesmeyer, Flotsametrics. Scigliano also works as a science writer at Washington Sea Grant, a marine science and environmental program based at the University of Washington. He can be reached at eric.scigliano@crosscut.com.

View this story online at: http://crosscut.com/2012/12/26/law-justice/112134/out-limb-big-rudes-big-view-vs-preachers-pine-tree/

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Printed on September 18, 2014