BISHOP v. HANES
Court of Appeals of California, First District, Division One.
Filed October 27, 2011.
Defendants object that retrospective application of the amended View Ordinance to them constitutes a "taking" and denies them due process. The same contention was rejected on strikingly similar facts in Echevarrieta, supra, 86 Cal.App.4th 472. In that case, the City of Rancho Palos Verdes enacted a view protection ordinance that prohibited residents from permitting vegetation to grow beyond certain height limitations if it would significantly impair another resident's view. (Id. at p. 475.) If existing vegetation already exceeded the height limitation and impaired a view, the ordinance required the view owner to first attempt informal resolution of the matter with the vegetation owner. If that failed, the view owner could apply to the view restoration committee (VRC) for a view restoration permit. (Ibid.) After a hearing, the VRC could order the removal or replacement of vegetation, at the view owner's expense. Any interested party could appeal to the City Council of Rancho Palos Verdes. In Echevarrieta, the permit seeker had views of the Pacific Ocean and Catalina Island which were obstructed by the down slope neighbor's trees. (Id. at pp. 475-476.) After multiple hearings before the VRC, the down slope neighbor was required to remove some trees and trim others, and the view permit seeker was required to plant shrubs between his property and his neighbor's to mitigate his neighbor's privacy concerns. (Ibid.) After the City Council of Rancho Palos Verdes rejected the down slope neighbor's appeal, he unsuccessfully sued the City of Rancho Palos Verdes. (Id. at pp. 476-477.) On appeal, the down slope neighbor argued that the ordinance violated the takings clauses of the Fifth Amendment to the federal Constitution, and article 1, section 19 of the California Constitution. (Echevarrieta, supra, 86 Cal.App.4th at pp. 479-480.) He also argued that retroactive application of the ordinance deprived him of due process. (Id. at p. 482.) The Court of Appeal rejected both arguments. With respect to the takings clause contention, the Echevarrieta court ruled that the imposition of limitations on the height of preexisting foliage was a legitimate exercise of the police power which did not rise to the level of a taking under well-established precedent. (Id. at pp. 479-481.) With respect to the due process contention that retroactive application of the ordinance amounts to irrational and arbitrary action, the court held that the ordinance was not irrational or arbitrary because "there is no automatic retroactive reach of the ordinance. Homeowners are allowed to keep foliage at the height it existed on the effective date of the Ordinance. It is only when another homeowner applies for a view restoration permit that the inquiry begins whether the foliage must be trimmed to a lower height. . . . [¶] In addition, there is no showing that the ordinance was applied in an arbitrary or irrational manner. [Citation.] The ordinance requires first resort to informal dispute resolution and provides for noticed hearings and rights of appeal. [Plaintiff] and the City Council duly followed all the required steps." (Id. at p. 482.)
In our view, Echevarrieta is dispositive of defendants' takings clause argument. Oakland's View Ordinance, too, is a proper exercise of the police power. Furthermore, we are not persuaded by defendant's arguments that the differences between the Oakland and Rancho Palos Verdes ordinances render Echevarrieta inapposite on the due process issue. Both ordinances operate retrospectively in the same way: Homeowners are allowed to keep their vegetation at preexisting heights, unless a neighbor complains that his or her views are obstructed. At that point, both ordinances encourage informal mediation to resolve the conflict. Under the Rancho Palos Verdes ordinance, if mediation fails to resolve the conflict, hearings and appeals ensue. Under the Oakland ordinance, if mediation fails, the ordinance creates a private cause of action, and places "the burden of proving the alleged view obstruction and the suitability of the proposed restorative actions" on the view claimant. (Oakland Mun. Code of Ord., tit. 15, ch. 15.52, § 15.52.090, subd. (C).) Ultimately, a judge decides, based on enumerated statutory factors, and, as this case demonstrates, the losing party may appeal. The Oakland ordinance provides fair notice and procedural protections that are comparable, if not identical to, the ones provided by the Rancho Palos Verdes ordinance. Defendants have not demonstrated that the Ordinance is arbitrary or irrational in application. Their due process rights were not violated.
B. The Remedy Fashioned by the Court Did Not Constitute An Abuse of Discretion.
Defendants argue that the remedy fashioned by the court is unfair and unauthorized because the court did not properly consider that the trees on the City property would block the Bishops' views even if the Haneses' trees were removed. They characterize the court's reliance on the "breezy assurance[s]" of city arborist Mitch Thomson as "suspect, at best." As we understand defendants' argument, the Haneses appear to attack the court's issuance of a permanent mandatory injunction ordering the removal of their offending trees and replacement with conforming vegetation, on the ground that the court should have rejected Mr. Thomson's testimony.
We review the court's decision to grant a permanent injunction for abuse of discretion. "A reviewing court will exercise its independent judgment when it is required to interpret and apply a statute where the underlying facts are not in dispute. [Citation.] [¶] However, to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard. Our power in this regard `begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.' [Citation.]" (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) Substantial evidence supports the trial court's findings in support of the issuance of the injunction. Arboriculture inspector Mitch Thomson testified that he had worked for the City in that capacity for almost 21 years and had helped resolve "hundreds" of view disputes in that time. In response to a view claim from the Bishops requesting some relief from a view obstruction on City land, Thomson did a field investigation of a City lot near the Bishops' property. To Thomson, it was "[p]retty clear . . . that there is an obstruction from their home to the bay, and acacia trees on our undeveloped lot seemed to be the main culprit, and you have the Haneses' property in between the Bishops' view and our property, so both [the Haneses' and the City's trees] need to be dealt with to do some view restoration." High-value views of water and San Francisco from main living areas of the Bishops' house were being obstructed. The obstruction came from a fairly dense clump of "small brushy acacia[s]" on the City's lot. The solution that made sense to him was to first clear out this group of acacias "as a phase one[,] because you can get a fairly good idea of what [view] is going to be available, but you won't know for sure until that brushy material is gone. . . . [¶] I proposed a phase two where we come back and we evaluate once the small material is gone and see do any other trees need to be removed. Maybe some of the larger trees on the city lot just need some limbs removed off the bottom and we see under the trees or maybe there is just a selective tree here and there that would be removed because . . . we're looking for a compromise and a balance."
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."