BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
Most tellingly, MacNair testified that on his second visit in 2009, he observed that part of the acacia stand had been removed, and that the balance had been topped. However, from the perspective of the Bishops' property, there was no change in the obstruction from 2008 because "when you top the acacia, there is almost immediate response of rapid regrowth . . . and so it goes into an active growth phase, and that's what happened. So the density of the grove was not much different in terms of the foliage mass. There were fewer stems, and they had been brought down a bit, but in terms of the view obstruction, it really wasn't effective." He opined that "you can expect a minimum of three to four feet of growth a year from those trees after a topping cut." As for the Monterey pine, it was not as fast-growing as an acacia, but MacNair nevertheless observed that the branches had been growing fairly rapidly below the pruning cut. Substantial evidence supports the view that even with periodic cutting and topping, the Haneses' trees continually grew and obstructed the Bishops' views from at least 2006 to the present, and that the cutting and topping undertaken in response to mediation had not solved the problem. In our view, the trial court did not abuse its discretion in concluding that the trees constituted a continuing nuisance to which the doctrine of res judicata did not apply.
Application of Oakland's Amended View Ordinance to Defendants Does Not Violate Defendants' Substantive or Procedural Due Process Rights.Defendants argue that application of the amended View Ordinance to them "constitutes an impermissible retroactive application of the law" that "effects a `taking' of the Hanes property." We disagree, because the law, as applied to them, is prospective in application and, even if it were retroactive, it would not constitute a taking or otherwise violate due process, as explained in Echevarrieta, supra, 86 Cal.App.4th 472. "A statute has retrospective effect when it substantially changes the legal consequences of past events." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 (Western).) In this case, the amended ordinance was applied to view obstructions that postdated the 2004 and 2006 amendments: the Bishops did not request reconciliation and mediation under the ordinance until 2007. The fact that existing trees may or may not have obstructed the Bishops' views before 2004 does not mean that the ordinance is retrospective in its application. "A statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment." (Ibid.) Moreover, both amendments were accompanied by clear legislative statements that it was the intent of the City Council to clarify that the View Ordinance always applied throughout Oakland, and to all trees, sprouted or planted. "[A] statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment. . . . Our consideration of the surrounding circumstances can indicate that the Legislature made material changes in statutory language in an effort only to clarify a statute's true meaning. [Citations.] Such a legislative act has no retrospective effect because the true meaning of the statute remains the same. [Citations.] [¶] One such circumstance is when . . . . [¶] `"[T]he amendment was enacted soon after controversies arose as to the interpretation of the original act, . . ."' [¶] Even so, a legislative declaration of an existing statute's meaning is neither binding nor conclusive in construing the statute. Ultimately, the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts. [Citations.] Nevertheless, the Legislature's expressed views on the prior import of its statutes are entitled to due consideration, and we cannot disregard them." (Western, supra, 15 Cal.4th 232, 243-244.) In this case, shortly after the first lawsuit between the parties resulted in a judicial opinion that the View Ordinance only applied to trees planted in certain areas of Oakland, excluding the parties' properties, the City Council amended the statute, admittedly at the Bishops' instigation. In doing so, the City Council expressly stated that its intent was to "clarify that the private right to reconciliation and arbitration established by the View Ordinance applies throughout the City of Oakland; [and] . . . [¶] . . . to clarify that the View Ordinance applies to all trees at issue on the tree owner's property, both those planted by the tree owner as well as trees allowed to sprout as a result of natural regeneration." Although this expression of intent is not binding on us, defendants do not tender any reason why we should refuse to give it credence. In the absence of any such reasons, we see no basis for disregarding the City Council's stated legislative intent.
In any event, even if the amendments changed, rather than clarified the View Ordinance, the City Council's declarations of intent reflected a "purpose to achieve a retrospective change. . . . `[W]e must give effect to this intention unless there is some constitutional objection thereto.'" (Western, supra, 15 Cal.4th at p. 244.)
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."