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.