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."
1. At the time of trial in 2009, Lloyd Bishop was 87 and Phyllis Bishop was 93 and they had moved from their home on Wilton Drive to an assisted care facility in downtown Oakland, but they still visited their home in the hills regularly.
2. Except for a brief period in 1998, the Haneses have not lived in the house since 1990. The house remains a rental, although the Haneses intend to return to live in it someday.
3. We assume, from the entire tenor of the court's statement of decision, that the court meant to state "the Bishops" and not "the Hanes."
4. Oakland Municipal Code of Ordinances, Title 15, Chapter 15.52, section 15.52.070 provides: "Each party shall pay his or her own costs and attorneys fees except in the case where the dispute goes to trial or judicial arbitration. In the event that an action under this chapter is resolved after trial or judicial arbitration in municipal or Superior Court, the prevailing party shall be entitled to reasonable attorney's fees and costs of suit."
5. Oakland Municipal Code of Ordinances, Title 15, Chapter 15.52, section 15.52.060 provides: "The cost of all restorative actions, replacement plantings, and arbitration shall be apportioned between the view claimant and the tree owner as follows:
"A. The view claimant and tree owner shall each pay fifty (50) percent of such costs in those cases involving any tree planted or allowed to sprout as a result of natural regeneration by the tree owner subsequent to the effective date of this chapter (August 5, 1980).
"B. The tree owner shall pay one hundred (100) percent of such costs in those cases where:
"1. The tree owner has refused to participate in good faith in the initial reconciliation or voluntary arbitration processes (Section 15.52.090B) and where the view claimant has prevailed at trial or judicial arbitration; or
"2. In any subsequent dispute between the same parties, to restore any view obstructed by the same tree or trees or any of the plantings substituted for the original offending tree or trees described in subsection A of this section.
"3. The tree owner plants a tree(s) against the expressed, written objection of the view claimant and the same tree(s) later become subject of a view claim.
"C. In all other cases, the view claimant shall pay one hundred (100) percent of such costs."
6. Because of the posture of the litigation, res judicata was not controlling. Judge Baranco concluded the ordinance in effect at that time did not apply and ruled in favor of defendants. This decision was not appealed and became final. Subsequently the Oakland City Council corrected or clarified the View Ordinance to include all residents of the Oakland Hills within the protection of the ordinance. By 2004 the ordinance had been changed to allow all Oakland residents to enjoy the benefits of the revised ordinance. The View Corridor was identified correctly as the Public View Corridor, compatible with the map under the revised legislation. The revised ordinance applied to the parties and all other similarly situated Oakland residents so that they would have a protected view. The parties then proceeded on the claim of a right to a view based on the changed ordinance. This new ordinance, further modified in 2006, was the basis for the litigation before Judge Tigar and created a right that did not exist when the matter was litigated before Judge Baranco.
7. Mr. Thomson testified that eucalyptus, Monterey pines, and acacia trees under nine inches in diameter, four and one-half feet off the ground, were not protected and could be removed without first obtaining a permit.
8. Mr. Thomson testified that "the S-10 has the word `scenic' in it, and maybe that's a misunderstanding. All it means is if you are going to build on that property, there are some requirements of height and setback for the building on that property since this is a scenic corridor, and height limits are going to be lower, and the building is going to be designed and constructed such that you are trying to minimize the impact to the public as they travel that road and try to preserve the views they can for the public."
9. Dr. Hanes did testify to his belief that "the way our property sits . . . it is open land, it's an S10, it's part of the OSCAR plan. . . ." However, the court struck that testimony. Furthermore, the court told defendants' counsel that if Mr. Thomson was wrong about the ordinance, he should tell the court during closing arguments and show the court a copy of the ordinance at that time. Counsel did not do so.
10. Defendants request that we take judicial notice of copies of zoning maps for the City of Oakland, and excerpts from the Oakland General Plan concerning the OSCAR, along with an a chart entitled "Addendum to City of Oakland General Plan and Zoning Map dated May 6, 2010." We decline to do so because the documents were not presented to the trial court and reference in part post trial dates.
11. Actually, Dr. Hanes testified, referring to the Bishops: "You know, villainy has many faces, and I think self-righteousness is probably the most beguiling and deceiving of all."