BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
As relevant here, the court found that from their 1964 purchase of the property, and for approximately the next 20 years, the plaintiffs enjoyed "a panoramic view looking out into a westerly direction over Oakland, the Oakland Estuary, the island of Alameda, the San Francisco Bay, the San Francisco city skyline, the Golden Gate and Bay Bridges, Yerba Buena and Treasure Islands, and the Marin Headlands." The Bishops' view is one of "`high-value,'" given the landmarks in view and the viewing points from the Bishops' living room, study, dining room, master bedroom, lanai, and deck. All the experts, including defendants' landscape architect, agreed with this assessment. The view is "significantly diminished by trees located on the Hanes property" in that "the most valued features and landmarks are almost completely obstructed by Defendants' trees."
To a lesser extent, the Bishops' views were also obstructed by trees located on the City of Oakland's property. However, the court found that these trees did not significantly affect its findings on liability or remedy because Oakland Arboricultural Inspector Mitch Thomson testified that "the City would take steps to minimize or eliminate the City trees' view obstruction once obstructing trees on the Hanes property were removed," and because "the Hanes actively prevented the City from taking steps to mitigate or remove the same City trees obstructions upon which they now rely."
The court's site inspection confirmed that the Haneses' trees substantially obstructed the Bishops' views of San Francisco, the Bay, the Marin Headlands, Oakland, Alameda and other landmarks from various perspectives on the Bishops' property, including the living room, study, dining room, master bedroom, lanai, and deck.
The inspection also confirmed that the trees in question might provide some subjective benefit to defendants. However, the court did not accept defendants' testimony that they enjoyed the visual screening their trees provide, because defendants do not live at the their property, no testimony was offered as to whether the tenants similarly valued the screening, and the expert testimony was that "the trees at issue offered little objective screening of defendants' home from any other feature." This opinion was confirmed by photographic evidence. In addition, defendants' own expert concurred that the sense of privacy was largely "in the minds of [the] Defendants," and that other plants would perform a better job of benefitting the defendants' property "from an objective landscape architecture standpoint." The court also gave little credence to testimony that birds might enjoy the trees at issue, because the testimony was vague and, because the trees were non-native, they "not only do not attract wildlife particularly well, they preclude the growth of other plants nearby that might themselves attract wildlife."
The court also found that while the trees do provide some erosion control, the uncontradicted expert testimony from a geotechnical engineer, which the court stated it accepted, established that the trees at issue "do not materially contribute to slope stability, and that removal and replacement would have no impact on the issues of erosion or stability, provided the work was performed correctly." The court also noted that despite defendants' asserted concerns about slope stability, they had never retained the services of a geotechnical or soils engineer to evaluate their concerns.
The court also found that the trees provided no energy conservation or climate control benefits and, as stated by the defendants' own expert, were mostly "non-native, grow very quickly, are messy, unattractive, contain a toxin which can inhibit other plant growth, and, in general are not optimal for a residential setting." In addition, the trees had no significant economic value, were highly flammable and of poor specimen quality. Finally, acacias were listed by the City of Oakland (City) "as an undesirable species that should not be planted." For all of these reasons, the court concluded that the trees at issue "provide almost no benefit to the Hanes and impose a substantial detriment on the Bishops" and therefore, "[o]n balance, the benefits the trees provide Defendants are significantly outweighed by the burdens they impose on the Hanes[sic]."3
Accordingly, the court adopted the recommendations made by plaintiffs' consulting arborist and horticulturist "which are that the trees and vegetation in question be removed with the tree stumps left in place and treated chemically to inhibit regrowth[; and] that the trees be replaced with shrubs that can provide screening and erosion control without creating a view obstruction." Specifically, the expert arborist recommended the immediate removal of all the blackwood acacia trees, the smaller of two Monterey pines, a redwood, and two plums. He also recommended the removal of the larger Monterey pine in three to five years due to its age and the potential structural hazard it presented, as well because of its view obstruction. The court did not follow this recommendation, finding instead that the second Monterey pine should be removed now rather than later, to avoid the possibility of further litigation. The court noted that the defendants' expert recommended a similar plan. The court concluded: "In short, due to the poor condition, undesirable species, and inappropriate plant material, the experts are in accord that the offending trees and vegetation should be removed and replaced with more suitable plant material, such as non-flammable, native shrubs, which will not become view obstructions at maturity. [¶] The experts agreed that the recommended proposal—removal and replacement—would be the most effective way to proceed and . . . is ultimately a benefit to both properties."