Alert: Neighbor Disputes -- Trees vs.

Neighbors' Views
Shd Council adopt a "view enforcement" Code @ Monday's 12/11 Council Meeting?

Should we pass a local law providing that, if someone's trees or foliage are blocking your view,
you can get an order that the tree-owner must cut down or trim their trees or foliage? Or, from
the other side of the coin, if your trees or foliage are blocking your neighbor's view, should your
neighbor be able to get an order that you must cut down or trim your trees or foliage?

There's a public hearing on Monday night, December 11, 2017, 6:30 pm, at City Hall, for public
comments, both for and against, a new and novel "view enforcement" Code for trees-vs-views
neighbor disputes in Medina. The question:

Currently, neither the city nor neighbors can make a homeowner cut down their trees or foliage
for the sake of the neighbors' views or sunlight access. Should Medina pass a new "view
enforcement" Code, under which a resident, whose view or sunlight has become "unreasonably"
blocked by nearby trees or foliage, can bring a complaint against the tree/foliage owner, seeking
an order from the Medina hearing examiner that the blocking trees/foliage be cut down or
pruned, and with penalties assessed for failure to remove/prune as ordered?

*Time sensitive*: Please send your comments before Monday night: Please let Council know
what you think, by emailing Council at ccmail@medina-wa.gov and/or by making comments at
the hearing. Please send your comments as soon as you can. The hearing, and a likely vote, is
on Monday night, starting at 6:30pm at City Hall. (Know other Medina residents who'd like to
weigh in? Please forward this email to them.)

Discussion:

Current law provides there's no legal right to a view: Under the current federal, state and local
law, a landowner in Washington State owns their land as well as the airspace above their land.
The neighbors do not have a right of access to view or sunlight over the landowner's property.
Therefore, in general, landowners have the right to plant and maintain their trees and vegetation
wherever they want on their property. Even if a neighbor's view or sunlight access becomes
blocked by a landowner's trees, the landowner cannot be compelled to cut down or trim their
trees. (If someone wants to ensure that their view or sunlight is not blocked by nearby trees,
they can offer to pay the property owner for the property owner's airspace and purchase a view
easement from the property owner.)

Trees vs. views: A well-landscaped yard, sheltered by trees, is desirable and valuable.
Landowners landscape their property and plant and defend their trees for many reasons - for
aesthetics, for shade, for privacy, to help the environment (remove carbon dioxide, clear the air,
reduce polluted runoff), to provide shelter for wildlife, etc. Likewise, a home with a view is
desirable and valuable, and, if that view becomes obstructed because of neighboring tree
growth, that homeowner will argue that the view-obstruction negatively impacts their enjoyment,
as well as the value, of their home, and that, therefore, there should be a local law passed
under which the blocking trees can be ordered cut down or removed in order to restore their
view.

What do other cities do? View-enforcement laws are uncommon. While there are a few cities in
California that have a type of view-enforcement law, I believe that Clyde Hill is the only city in
Washington that has an ordinance under which a resident can be made to cut down their trees
for the sake of another resident's view. (You may remember the Olerud v. Baker dispute in
Clyde Hill, which was, like most neighbor disputes, very contentious, and divided the
community. See http://crosscut.com/2012/12/out-limb-big-rudes-big-view-vs-preachers-pine-
tree/.) As legal scholar, Paul Weinberg, states, "An objective third party viewing [a tree vs. view
conflict] would most likely wonder why a municipality would want to enter a fray fraught with
liability and conflict, particularly when it would be likely to make at least one of the parties, both
of whom are citizens and voters, unhappy."

Why is there a high risk of litigation? Concerned about the risk of litigation, I requested that the
City's insurance carrier undertake a peer-review of the Code, and they concluded that there "is
a reasonably high likelihood" that the Code would prompt a legal challenge. (See pages 144-
155 here https://medina.civicweb.net/filepro/documents/20510?preview=20657 ). Their
conclusion is consistent with the input I've received from various environmental attorneys, land
use attorneys, property-rights attorneys, and Constitutional scholars I have spoken to about the
proposed Medina Code, all of whom concluded, in short, that the proposed Code raises
significant and tricky legal issues, and that, because it exists within the high-conflict area of
neighbor disputes, it brings with it a high risk of litigation to residents, to the City, and even to
the Council members who may vote in favor of the Code. (See pages 147-149 at the following
link for possible legal challenges to the proposed Code, including arguments as to
unconstitutional private takings, violation of due process rights (including due to retroactivity of
Code, and unlawful use of police powers to transfer property rights from one citizen to another),
unconstitutionally vague standards, and exceeding a city's land use regulatory
authority: https://medina.civicweb.net/filepro/documents/20510?preview=20657.)

In the peer-review report, we are also warned, "Possibly the most likely exposure of the City
arising from adoption of the proposed ordinance is the risk of being required to pay attorney's
fees to the prevailing party if the proposed ordinance were to be successfully challenged," and
that it "is not unforeseeable that the proposed ordinance could require a significant commitment
of City resources in terms of litigation management expense."

Previously, Medina's risk tolerance for litigation has been high, and, as a result, the City has
spent millions of dollars on litigation fees, damages and settlements over the past few years
(including the $1.7 million payout in 2016, which drained our rainy day fund).

In my opinion, your tax dollars should be used on City services and investments in our
community, parks, sidewalks, streets, etc., not on litigation. Attorneys think these tree vs. views
issues are interesting, and litigating a novel Code like this would keep the City's attorneys busy -
- and make for interesting law review articles -- but I'm not convinced this is a good use of our
tax dollars (especially where, as here, we are advised, "The proposed ordinance may reach the
outer limits of an unstable area of law." (See top of page 146)).

Is it good public policy? Setting aside the high risk of expensive litigation, it is not, in my
opinion, good public policy for the City to encourage locally-based "litigation" between
neighbors. In my view, our small community thrives when we are sociable, collegial,
collaborative and neighborly. I am concerned that the proposed Code will increase the number
of neighbor disputes, and create neighborhood- and city-wide animosity. It seems highly likely
that the view-enforcement process will lead to bad feelings and (unpleasant, emotionally-
draining and expensive) litigation between and among neighbors, as well as (unpleasant,
emotionally-draining and expensive) litigation against the City.

Furthermore, as realtors and other professionals have noted, if we adopt this Code, we should
expect that, before anyone puts their home on the market, they will be encouraged to bring
view-enforcement action(s) against their neighbors, which, if successful, would decrease the
value of their neighbors' property in order to increase the value of their own property. If the
Code is adopted, Medina residents should expect to lose even more of their valuable tree
canopy. Even though this could feel like "bad faith" to the tree owners and the remaining
Medina residents, it wouldn't actually be bad faith by soon-to-be seller - it would be simply a
matter of economics for the family moving out of Medina and they would be doing what the law
would allow.

I want my view restored - what do you have to say to me? Some of my favorite Medina families
want a process for getting their views restored. I hear your frustration, and I wish there was a
way for everyone to be happy with their views, and for neighbors to settle disputes
voluntarily. With respect to the proposed Code, if it passes, I expect it will be challenged in
court. (A law passed by the State legislature would be less likely to be successfully challenged
in court.) I fear the process will take longer, cost more and be more contentious than many
anticipate, and that, in the end, after you complete the steps leading up to the Hearing Examiner
process, the Hearing Examiner process itself, and any follow-on (time-consuming, expensive,
and emotionally-draining) litigation, and then contend with the City's Tree Code, the final
removal/trimming ordered by the Hearing Examiner may be relatively minimal and it may not
provide you with the view you had remembered or envisioned. I'm cautioning on this, because I
don't want you to be disappointed. (See bottom of page 146: [The Code] is like to lead to
"lower satisfaction of outcomes, increase the strain on relationships, and, paradoxically,
heighten transaction costs in the dispute resolution process.")

My vote will be "no": Monday night's vote will not be an easy one. For all the reasons above, I
cannot support the proposed Code; however, I promise that I will continue to seek out other
possible solutions that don't have the risks for the City and community of Medina outlined
above.

Questions? Comments? Please let me know. You can write to the entire Council at
ccmail@medina-wa.gov and you can reach me directly at cadkins@medina-wa.gov

Thank you.

Sincerely,

Cindy

Cynthia F. Adkins
Medina Councilmember