In a recent neighbor dispute, retired baseball All Star John Olerud petitioned his local board of adjustment in Washington to force his neighbor to cut down a rare Chinese pine, worth $18,000, so Olerud could have an unobstructed view of the Seattle skyline, improving his own property’s value by $255,000. Ilya Somin at Volokh Conspiracy talks about property rights issues involved in the story.
What I’d like to ask is: Who’s to blame here? Is this outcome the result of toothless judicial protection of property rights? Of the lack of statutory protections? Of local ordinances that subvert rights to economic value? (Bear in mind that most state and local governments derive substantial revenues from property taxes, which are tied to property value, giving little motivation to protect owners’ subjective values to generations old trees, jungle gyms and tree-houses for their kids, etc.) Or, in light of the fact this is the first time the particular provision in the local ordinance has ever been invoked, is the problem simply that Olerud is an ass?
Or was this the right outcome?
UPDATE: Unsurprisingly, it’s hard to find a debate on this subject — everyone instinctively believes there is something just wrong about the outcome here. So let me play devil’s advocate.
According to the Clyde Hill Municipal Code, Chapter 17.38 entitled View Obstruction and Tree Removal (http://www.mrsc.org/wa/clydehill/index_dtsearch.html), the people through their representatives enacting the chapter declare that although trees are beautiful and wonderful, etc. (17.38.010), views are also really important:
Views also produce a variety of significant and tangible benefits for both residents and visitors to the city. Views contribute to the economic environment of the city by substantially enhancing property values. Views contribute to the visual environment of the city by providing inspiring panoramic vistas, and creating distinctive supplements to architectural design. Views contribute to the cultural environment of the city by providing a unifying effect, allowing individuals to relate different areas of the city to each other in space and time.
So there’s obviously a conflict, as the code goes on to recognize:
It is recognized that trees and views and the benefits derived from each, may come into conflict. Tree planting locations and species selections may produce both intended beneficial effects on the property where they are planted, and unintended deleterious effects on neighboring properties. Trees may block light, impinge upon the utilization of solar energy, cause the growth of moss, harbor plant disease, retard the growth of grass, harbor rodents, interfere with snow and ice removal, as well as interfere with the enjoyment of views, including the undermining of property values. It is therefore in the interest of the public welfare, health and safety to establish standards for the resolution of view obstruction claims so as to provide a reasonable balance between tree and view related values.”
In light of the competing recognized values of trees and views, the city explains in impressive detail how it will decide conflicts between these values:
17.38.020 Preservation of views. It is recognized that trees and views and the benefits derived from each, may come into conflict. Tree planting locations and species selections may produce both intended beneficial effects on the property where they are planted, and unintended deleterious effects on neighboring properties. Trees may block light, impinge upon the utilization of solar energy, cause the growth of moss, harbor plant disease, retard the growth of grass, harbor rodents, interfere with snow and ice removal, as well as interfere with the enjoyment of views, including the undermining of property values. It is therefore in the interest of the public welfare, health and safety to establish standards for the resolution of view obstruction claims so as to provide a reasonable balance between tree and view related values.
17.48.030 Complaint. [Sets forth procedure for filing a complaint, how complainant’s view is obstructed, description of efforts to resolve the issue with the neighbor, description of costs to remediate, etc.]
. . . .
17.48.050 Hearing and findings of the board. [A finding in favor of the complainant may be issued only if the board] shall find all of the following facts to be true:
1. That the property owner making the complaint has contacted the tree owner and made reasonable efforts to alleviate the problem as set forth in CHMC 17.38.030;
2. That the view from or the sunlight reaching the real property of the complainant is unreasonably obstructed and the manner in which the view or sunlight is obstructed. In determining whether the view from or sunlight reaching the real property of the complainant is unreasonably obstructed, the board may consider several factors, which include but are not limited to, the following:
a. The extent of the alleged view obstruction, expressed as a percentage of the total view, and calculated by means of a surveyor’s transit or by photographs or both;
b. The extent to which landmarks or other unique view features, as defined in CHMC 17.38.020(E), are obstructed;
c. The extent to which the tree(s) cause shadows or reduce air circulation and/or light;
d. The extent to which the tree(s) affect the real property value of the complainant’s real property;
e. The extent to which the tree(s) provide visual screening; a wildlife habitat; soil stability (as measured by soil structure, degree of slope and extent of root system); and energy conservation and/or climate control;
f. The extent to which the tree(s) affect neighboring vegetation;
g. The visual quality of the tree(s), including, but not limited to, species characteristics, size, form, texture, color, vigor and location; and other tree-related factors, including, but not limited to, indigenous tree species, specimen tree quality, rare tree species, and historical value;
3. That such obstruction materially decreases the enjoyment of the real property of the complainant; and
4. That trimming, pruning, removal or other alteration of the site of the obstruction in the manner to be determined by the board will not unreasonably decrease the enjoyment of the real property of the tree owner, as determined by an objective evaluation.
C. In making the board’s decision, the personal attachment of a party to particular trees or landscaping shall not be compelling nor shall a minor obstruction of a view or sunlight be decisive. (Ord. 805 § 1, 1999; Ord. 648 § 1, 1991)
Based on this list of criteria, it is fair to say that both Olerud and the neighbor were on notice of how disputes between trees and views were going to play out in Clyde Hill. Given the alleged rarity and value of the Chinese pine here, this was probably a close call (“rare tree species” is a factor, but so is “visual quality,” and according to Olerud, this was a tree “that only an arborist would love”). But the neighbor was on notice that his personal attachment to the tree has no significance in Clyde Hill: the city values trees, too, but if there’s a dispute, they’re basically going to crunch the numbers and a few other “objective” factors. If you don’t like it, you can take your business (i.e., the business of buying and residing in a home) to another city that perhaps puts more of a premium on trees than Clyde Hill does. That’s the marketplace of municipalities. Vote with your feet.
Similarly, the law, and economics, will presume that Olerud’s purchase price factored in his right to “inspiring panoramic vistas” of Puget Sound free from arboreal obstruction. It doesn’t matter if the tree was already there when Olerud purchased: the law says that he had the right to have it cut down. Thus, his purchase price would have been increased by the value of that legally guaranteed view, less the transaction cost of enforcing the ordinance (i.e., trying to settle with the neighbor and ultimately obtaining the order from the board).
So, on closer look here, there’s nothing wrong with this outcome. If you don’t like it, just don’t move to Clyde Hill.
The right outcome is the tree staying up. Olerud is an ass for asking otherwise, and the government is ludicrous for deciding that one guy’s tree has to come down so another’s guy’s property can increase in value. That tree was almost certainly there before Olerud decided to build his house there.
If we start from the premise that everyone is an ass, at least when they want something and you’re standing in their way, the purpose of the law is to protect what’s yours against someone else taking it by force. In the absence of the state, Olerud would have just taken an ax to the tree when the neighbor wasn’t home. This ordinance saved Olerud the effort. Obviously this is directly opposite to the purpose of the state: to prevent one person from having is way with another. But as I mentioned above, the state and local government don’t have an interest in fulfilling this purpose when it comes to property rights since their revenues are enhanced by undermining individual property rights for the sake of improving objective property values. In other words, at favoring the majority at the expense of the minority.
This is why I asked the question. (As you can see, I’m strongly hinting at strong constitutional protections for property rights.)
I handled a case once in which the defendant waited until my clients went on vacation, then hired a crew to chop down my clients’ trees.
What’s amazing is that one of my then law partners saw the whole case as nothing but property damage; what’s the replacement value of the tree, that’s the damage, so what’s the problem, this ought to settle easy. It took a little bit of explaining that this sort of behavior is just plain obnoxious. (There’s a special statute about cutting down your neighbor’s trees in California for that exact purpose. Automatic treble damages.)
Olerud at least is going through the law instead of taking out a chainsaw and just doing it. Of course, a tree of that size in a residential area needs a little bit more than one guy and a chainsaw, but you get my point.
To challenge Tim’s point — is there point at which a tree becomes a nuisance? If your tree’s roots protrude into my swimming pool, am I without rights because the stump of the tree is on your side of the property line? Must I wait until the roots actually interfere with my pool before I take legal action?
But in essence, I agree – the neighbor wants the tree, so the presumption should be the tree stays. Olerud should need to make a pretty significant showing that the tree is interfering with his own rights. And Olerud does not have a right to an unobstructed view of Puget Sound, no matter how economically efficient that might be.
“Olerud does not have a right to an unobstructed view of Puget Sound, no matter how economically efficient that might be.”
No, but wouldn’t you say that he has a right to his property’s economic value not being damaged by the actions of another party?
“being damaged”
It seems likely to me that the tree had been minding its own business for decades.
Heh. That doesn’t mean it wasn’t planning something dastardly all along…
The question is whether he had a reasonable expectation to an unobstructed view when he purchased the property. The tree was there when he bought, so that cuts against him. But the ordinance was in place at that time: did that give him a reasonable expectation? Maybe. If so, is that a good ordinance? It places views over trees. In forested Washington where there is no shortage of trees, it might not be so obviously unreasonable. This particular instance involving a rare tree maybe casts a bad light on an otherwise not-so-bad ordinance.
There was a dispute, in the town where I live, over one neighbor’s old-growth redwoods and the other neighbor’s newly-installed rooftop solar panels. (The solar panels won.)
We purchased land several years ago. The people on the other side of the road wanted the trees along the access road (driveway, if you like, but we’re talking undeveloped land) kept down to protect their view. We sold them a view easement. Meant we had less work to do to keep the road open, for they did it. And they got to keep their view.
There are markets for these things; but you don’t own your view without owning the easement to protect all the properties between you and the view.
zic is wiser than Olerud.
Q: If Olerud’s house is worth, let’s say, $1,000,000 today with the tree present, and it would be worth $1,255,000 if it had a view, then how much is Olerud’s house is worth?
A: $1,000,000.
If you disagree with this answer, please go back and re-read the major premise of the first question. Once you’ve done that twice, then you can tell me why the house is worth more than it’s actually worth.
The tree is not damaging Olerud at all. The theoretical value of the house if things were other than they are is a red herring. Things are as they are.
And it’s not Olerud’s tree. Nor is it Olerud’s view. As Tim points out below, Olerud never had the view to begin with, the tree was there long before he was.
Olerud demanding that his neighbor’s tree be removed seems to be at least in the same neighborhood as the behavior commonly condemned as “rent-seeking.” The real answer is what was said by many people below if Olerud is only willing to pay, for instance, $10,000 to have the tree removed, then the value of the view to him is $10,000, not $225,000.
His house would also be worth more if I volunteered my time to build him an addition. I will not be volunteering my time to build him an addition.
I hope I don’t get sued.
I’ve long wondered whether fee simple is a workable presumption in urban areas. There are just too many exceptions, actual or potential nuisances and externalities, unknown future public uses and easements, etc. Maybe more property in dense areas should be on a lease basis: the local government would own the property and just license specific uses for set periods. But then you lose all that’s good about property rights.
There are some of us who wonder whether fee simple is a good idea anywhere at all. We’re called Georgists and there’s a substantial literature on the subject. And no, you don’t lose all that good about property rights, just the right to financial gain from the actions of others.
I have some sympathy for Henry George’s views, though it would still take some work to comport them with my predispositions about limited government. 🙂
Mineral rights are handled that way in New Mexico.
The state sells the mineral rights in 50-yr. leases.
The property owner has the right to drill one well for water every so-many ft.2.
Did Olerud at least volunteer to pay for the removal costs and compensate the Baker’s? It doesn’t seem so from your linked article.
This seems like a good time to invoke the Coase theorem, eh? Given that Olerud stood to gain $255,000 in property value it seems like there was plenty of room for negotiations. Like, paying them upwards of $250,000 to remove the tree.
It’s times like these I get all libertarianish.
Definitely. I believe the ordinance requires Olerud to pay for removal. The story says the parties tried negotiating, but as I understand it, the ordinance warped the outcome: To get his way, all Olerud had to do was prove his view was worth more than the tree, not to actually pay the difference between the view and the tree. Given the outcome guaranteed by the ordinance, I can’t imagine Olerud would ever have offered the $255,000 minus transaction costs under the Coase theorem. He probably offered what he figured he’d have to pay attorneys to get the board to issue the order, plus the costs of removing the tree, maybe just a bit more in hopes of getting a speedy, friendly resolution. But this would top out at probably far less than half of of $255,000.
Yeah, I’ll split it, less expenses.
For $127,500, you can cut down my tree. You pay to take it down, though.
The lesson learned here, especially after reading Duck’s insightful question and Tim’s response above, is that this is why framing so many disputes under the moniker “property rights” fails to resonate outside a small group:
Nine times out of ten, the issue isn’t freedom vs. tyranny – it’s one persons freedoms vs. another’s.
Yes. I want the freedom from the tyranny of spotlights at night. My neighbor wants a well-lit yard. Never shall the twain meet.
I’ve worked with my town’s planning board to draft a revision to our zoning laws that at least requires lighting be focused down on the ground, where it’s needed, and not at other folks’ homes or up into the sky to dim the stars.
One interesting way that this plays out locally is with scenic highway designation. We’ve been asked if we’d like one; it would certainly bring some economic benefit. But voters tend to turn it down because it requires keeping certain view spots open; typically that means cutting down the white pine that grows to obscure those sweeping views. But in 20 years, one one of those small trees is worth a couple thousand dollars or more. Since the economic incentive is general to the area — more tourists driving through town — but the loss is direct to specific land owners, the designation has consistently failed over concerns of protecting private property rights.
John Olerud petitioned his local board of adjustment in Washington to force his neighbor to cut down a rare Chinese pine
I heard about a guy who did that. He used to play for the Mets.
I have little sympathy for Olerud. Wait. No. That’s not right. I have no sympathy. I wish my neighbor didn’t keep dirt bikes and SEA-Doos on his lawn. His property is a blight, likely lowering my property value. But it is his, to do with as he pleases.
Now, the dogs that roam my property… That’s another story. I might take a chainsaw to thse fishers.
That’s a nuisance. I mean, don’t kill the dogs, their behavior isn’t their fault – it’s the fault of their owner for failing to train and restrain them. But that’s the sort of thing that if I were a judge or a city councilman or otherwise in a position of some power I would see as intruding upon your rights and feel legitimate about acting on.
Yea. Truth be told, I don’t even know if he knows what’s going on. Our properties are adjacent so it isn’t the craziest thing when the dog wanders into our yard (at least as far as dog behaviors go). But sometimes it wonders the road. Seems like an absentee owner. I haven’t yet met the guy (lived here just about a year and I’m not sure if he’s on his property full time) and would always go and talk to him first before seeking outside help. He might not know the dog is getting out or might not realize it’s not staying on his property. But, yea, I wouldn’t feel bad if it ultimately did come to that and I had to take the necessary action to keep an unfamiliar dog off my property. But, no, I wouldn’t ACTUALLY kill them unless it was a life-or-limb situation, which I don’t anticipate given that they are never aggressive but one never knows with an unfamiliar animal.
But the other stuff? I don’t like it but, well, that’s life.
Seems to me that if Olerud bought the house knowing that the tree was there, he’s in the wrong. The neighbor’s right to maintain the tree on his property should trump Olerud’s desire for a less obstructed view of the Puget Sound. Tree guy is getting screwed, especially if Olerud’s isn’t required to pay him for the value of the tree. Does tree guy have any avenue to appeal?
I read the original story and Tree Guy does have a right to appeal, but hasn’t decided whether or not he will.
This paragraph explains the board’s rationale for ruling, 3-2, in Olerud’s favor:
The board found that the portion of the view blocked by the Bakers’ trees materially decreases the Oleruds’ enjoyment of their property. Removing the trees wouldn’t unreasonably decrease the Bakers’ enjoyment of their property, the board said. The view ordinance says an owner’s enjoyment of a tree must be determined “by an objective evaluation,” and “the personal attachment of a party to particular trees or landscaping shall not be compelling.”
Apparently, because Olerud could show that the tree limited his view and lessened the value of his property and Tree Guy couldn’t show that smaller, replacement trees wouldn’t give him less privacy than the offending tree, Olerud’s “rights” won out. I’m not sure that this logic provides sufficient “objective evaluation.” Nor am I sure that the
Olerud’s, who knew about the tree when they bought the property, were deprived of material enjoyment.
“Removing the trees wouldn’t unreasonably decrease the Bakers’ enjoyment of their property, the board said. The view ordinance says an owner’s enjoyment of a tree must be determined “by an objective evaluation,” and “the personal attachment of a party to particular trees or landscaping shall not be compelling.””
Bull fucking shit. Really? They’re going to decide (objectively, of course) who enjoys what how?
I suppose there is a question as if he was somehow promised an unobstructed view by the municipality in some way. Which is problematic on a great many number of levels.
Updated the OP. Turns out, the board may be right. The rule of law at work.
I read the update and I agree that this outcome seems to be a defensible, if not objectively correct, application of the black-letter law reported here.
Problem is, the law is an ass.
The municipal ordinance here creates an elaborate, multi-factored balancing test that requires a person claiming what is essentially a prescriptive easement for a view which never really existed in the first place against the inherent value of trees and private property owners’ autonomy under the pretense of calling it something akin to zoning. I seem to recall from law school a pretty iron-clad rule that there is no such thing as an easement in a view, and making that easement prescriptive is even more obnoxious, and then calling that thing something it isn’t is worse yet. A balancing test between something real and something fake should always come out in favor of reality over ficition, no matter how compelling the fiction sounds.
While I concede that the law as written seems to have been correctly applied and Olerud was within his legal rights to present a claim that was not only colorable but ultimately meritorious, the law ought not to have been written that way in the first place.
Yea, what Burt said.
Even if common law wouldn’t recognize the right to a view, I think you’re acknowledging statute law may. You say it shouldn’t, but why? I understand that a tree is tangible while a view isn’t, but that doesn’t mean a view is a “fiction.” Far from it if that $255,000 valuation of the view is anywhere near accurate.
Something got mixed up here. You’re supposed to be the positivist defending this law, not me!
Certainly a view is not a “fiction.” If it existed, it might even be considered an “asset.” But it never existed in the first place; we’re talking about a potential asset of the would-be dominant tenement. (Or is it “demense”? I forget. “Parcel.”)
The reason I’m reacting so strongly here is that the property right of the would-be servient parcel to have a tree at his pleasure seems plainly and obviously more important than the property right of the would-be dominant parcel to cut down someone else’s tree.
I also have difficulty imagining what the city’s legitimate interest in enriching the would-be dominant parcel’s value might be. Increased property taxes, maybe? But in enriching the dominant parcel, the servient parcel become impoverished, and a durable restriction on the use of the parcel becomes imposed (albeit indirectly), for which the owner of the servient parcel is not even being compensated for the diminishment in the quiet enjoyment of his property.
So maybe I’m not so rigid a positivist as I imagine myself to be. Maybe this is (oh noes) legal realism creeping in to my thinking, as I’m weighing abstract interests against one another. Of course, I’m also making a value judgment not as a judge (I’ve agreed that the law as written was probably applied correctly) but rather as a politician (imagining myself to be a city councilman or the equivalent thereof).
What if the situation were inverted. Suppose Olerud’s property currently had a view of a dump. His and his neighbor’s property are situated such that the only way to block this view would be the planting and unabated growth of a tree on his neighbor’s property. The change in his property value is the same… $255K or whatever. Leaving aside the actual law here, could an argument be made that Olerud can force his neighbor to grow that tree? Why or why not?
I’m sorry, but this case just seems like one of those situations where all the legalese simply dances around what ought to be an obvious decision: stay the fuck of your neighbor’s property.
“could an argument be made that Olerud can force his neighbor to grow that tree?”
Well, many municipalities have ordinances that if the city plants trees or shrubbery between sidewalk and road, it’s the property-owner’s responsibility to pay for maintaining them–and the property owner can’t cut them down without permission from the city. Which, if you believe in representative government, means that your neighbors can indeed force you to grow a tree.
I’m guessing that either:
1. Olerude’s property won’t actually be reassessed for the additional $225K.
2. If it is, he appeals (How can you raise me that much when I’ve made no improvements?) and wins.
I took a law class in grad school, and the professor commented once that the correct answer to any legal question was “It depends.”
Re: update
I hear Somalia has lots of trees.
So this garbage is written in their code. It’s still wrong. Voiding one persons property to serve the interests of another when they’re not being harmed is wrong. Their property, their tree, justice would have Mr Olerud f**k off.
Your legal analysis is completely incorrect because you are misreading the ordinance as stating “competing recognized values of trees and views, the city explains in impressive detail how it will decide conflicts between these values” followed by a list of these supposed “recognized values.”
In fact, the key provision in the ordinance states that the values that the city may consider are “NOT LIMITED TO” these so-called “recognized values.” In particular, the city is free to consider other values in determining reasonableness, namely what is determinative for most people, that Olerud built his house on a vacant lot knowing the trees were already there.
The ordinance does not at all, therefore require the outcome that the trees be cut down. It requires a determination of reasonableness be made and it allows factors like the age of the trees and the age of the new house be considered. That the city council did not apparently consider these just shows they, like you, misread the statute.
There is visibly a bunch to know about this. I suppose you made some nice points in features also.