Protected Trees

Protected Trees and Heritage Trees.

The two most common questions are: 1.) Which trees are protected?, and 2.) Can I remove a protected tree?

Which Trees Are Protected?

City Ordinances Protecting Trees

Most cities in Silicon Valley have enacted ordinances to protect certain trees from being cut down, generally to ensure that a signicant number of mature trees exist in the city. Each city has its own ordinances but there are many similarites between cities. We will use Palo Alto as an example.

Protected Trees in Palo Alto

A Heritage Tree is an individual tree of any size or species or historical significance that is deemed as such by City Council. Heritage Trees are protected. The City of Palo Alto lists eight Heritage Trees.

For trees other than designated Heritage Trees, the size of a tree typically determines if it is protected.

1. Any locally native tree of the species Acer macrophyllum (Bigleaf Maple), Calocedrus decurrens (California Incense Cedar), Quercus agrifolia (Coast Live Oak), Quercus douglasii (Blue Oak), Quercus kelloggii (California Black Oak), or Quercus lobata (Valley Oak) which is eleven and one-half inches in diameter (thirty-six inches in circumference) or more when measured four and one-half feet (fifty-four inches) above natural grade.
2. Any Coast Redwood tree (species Sequoia sempervirens) that is eighteen inches in diameter (fifty-seven inches in circumference) or more when measured four and one-half feet (fifty-four inches) above natural grade.
3. Any tree, other than a Coast Redwood Tree, fifteen inches in diameter (forty-seven inches in circumference) or more when measured four and one-half feet (fifty-four inches) above natural grade of any species except those invasive species described as weeds in Section 8.08.010 and those species classified as high water users by the Water Use Classification of Landscape Species list (WUCOLS) approved by the California Department of Water Resources.
4. Certain trees that have been designated for carbon sequestration and/or environmental puposes as identified in an agreement between the property owner and a government agency or recorded as a deed restriction. A replacement mitigation tree or other tree designated to be planted.

Invasive species trees and high water use trees are excluded from protection. A City of Palo Alto invasive and high water use tree list has approximately 20 different families listed.

The above is not guaranteed to be complete or up to date but gives a starting point in your own investigation.

California Endangered Species Act (CESA)

"CESA-listed species, or any part or product of the plant or animal, may not be imported into the state, exported out of the state, “taken” (i.e., killed), possessed, purchased, or sold without proper authorization."
- https://wildlife.ca.gov/Conservation/CESA

The California Department of Fish and Wildlife publishes a list of California's Threatened and Endangered Species.

 

Can A Protected Tree Be Removed?

Cities with protected tree designations provide rules for their removal. Palo Alto will be used as an example.

Trees that are under or near power lines are regulated.

The California Public Untilities Commission requires all utilites in the state to maintain vegetation clearance from their electric conductors and related equipment. From the City of Palo Alto line clearing information: "Often, power line clearing can result in a less than desirable tree form. In some cases, removal of the tree may be the best outcome."

City of Palo Alto Ordinances

A tree removal permit must be issued by Urban Forstry. All permit applications must include a report by a certified arborist that specifies how a tree meets listed conditions and that alternatives are not feasible.

Conditions for removal when there is no plan for development.

• The tree is dead or hazardous.
• The tree is deemed to be a nuisance. Typical reasons are blocking public infrastructure, blocking safe sightlines for motorists and pedestrians, or infected by a disease that might spread.
• The tree is a detriment to, or is crowding an adjacent protected tree.
• The tree is impacting the foundation or eaves of a primary residence.

Conditions for removal when there is a plan for development.

• All of the previous reasons.
• The tree is so close to the proposed development that construcion would result in the death of the tree, and there is no financially feasible and resonable design alternative.

Story About Getting Redwood Trees Removed

A Palo Alto home owner posted about his difficulties getting protected Redwood Trees removed that were damaging his house. We reached out to him to learn more and to get his permission to publish his story. Portions of his story that highlight potential challenges and his grief, even though he won the fight, follow.

You should understand that his claims of fraud are not to be ignored. The brokerage representing the seller, withheld critical information and knowledge of previous damage caused by the trees, from an arborist, the City of Palo Alto, the DRE, and during some of the court hearings. In order to get the sale to close, the seller's broker told the buyer he would indemnify the buyer for the removal of the trees, even though he did not represent the buyer during the home purchase and had only represented the seller. (Who buys a home to walk into a lawsuit?)

... a home buyer told by the seller's agent "according to information I have", this won't really be a problem
(There had already been $84K of problem paid for. Not a problem?)

Excerpts of what the owner of the damaged home said follow.

There is a state law, 150 years old, which controls this, not your local city ordinance. Basically, you, if an owner, are entitled to fair use and enjoyment of your property. It's a "pro property rights" law, cited in every CA real estate appeals decision. It covers everything".

Suppose you, as an owner, own a heritage tree and want to remove it. For "some" reason or "no" reason. You are entitled to do that. I hope you learned in 11th grade that local ordinance is subservient to state law. And state law is subservient to federal law. Etc. Suppose you didn't.

My attorney litigated this for me against my neighbor and his destructive trees. The neighbor thought they were pretty and didn't want to remove them. Getting much damage, I needed them removed. My attorney argued state law. His attorney argued he was complying with the local PA ordinance. It went to court. Guess who won ????

You might think the judge said , "Well, the state law says this, the local PA ordinance says that. How do I judge between the 2? How do I reconcile them? Maybe there's a compromise."

NOPE.

It was a 7-page decision. The PA ordinance was mentioned not even once. Ball it up and throw it in the trash. Who prevailed in 7 pages as to state law? I did.

State law is all that matters.

CA Civil Code 3479. This refusal to remove would be an "obstruction to the free use of property so as to interfere with the comfortable enjoyment of ...property." Thus that's "forbidden" under this state law. That would be, legally, a "nuisance". I successfully sued my neighbor for nuisance under #3479. I was awarded several hundred thousand, paid by his insurer. I think you are entitled to "free use" and "comfortable enjoyment" of your property. I know my PA neighbor in the Barron Park area learned that the hard way.

Roots from the neighbor's trees everywhere - impossible to have a healthy garden.

Nathaniel, here’s a very complete answer. The first suit against the neighbor was filed one Feb, in small claims. It came to trial that October. I engaged an attorney the following Feb and announced I intended a “big lawsuit” against the neighbor. That was served in May. I told my attorney about some fraud against me during small claims. (That also notably involved fraud against the City and the Judge). We jointly decided to file a separate legal action on that, which we won in Sept of that year (we had perfect written evidence). Then followed various legal processes. It turned out there was some serious fraud by a corrupt local PA realtor as well. Discovering that PA realtors fraud was good as to the outcome of my suit. As we discovered more realtor fraud, the realtor became nervous. I reported the PA realtor to the DRE, which opened an investigation. The realtor couldn’t take the pressure and wanted the whole thing to end. I am 99% convinced the realtor paid off the neighbor to end the case in my favor. It ended 18 months after I served the big lawsuit. It ended in a settlement, not a trial. The neighbor removed the 3 redwood trees and his insurer, Liberty Mutual, paid me $300 K for property damage from the tree roots. I had sued for $1 million, but the “policy limit” of LM was $300 K, so we took it. A well established realtor told me beforehand the impact of these trees on my market value was $1 million, so that’s what we sued for. My first lawsuit ever. I won all the legal actions described because everything they wrote was simply made-up. I paid $87 K in legal fees, well worth it. It saved my sanity, my house, and my marriage.

Nathaniel, I will add a few interesting details. 1st, as to LM involvement. That was good, notwithstanding what people say about insurance companies. They are rational and can write a big check. They don’t want to throw away legal fees in a losing case. They WANT to settle. What would happen in court is uncertain. A fellow at LM has certain legal cases he supervises and needs to move them along. Really, no nonsense. LM attorneys don’t file stupid unproductive legal motions. ALSO, insurance companies hire cheap attorneys. Lowest cost legal counsel. Their attorney twice got lost driving to my home. You get the picture ? That was positive for me. 2nd, what happened to my DRE complaint against the corrupt PA realtor? With the DRE, “my” complaint becomes a “DRE” complaint. I have nothing to do with it any longer. It goes into a “black box”. So, officially, I only found out only that the DRE had dropped the complaint. BUT, I later found out through a different process. What happened was the dishonest PA realtor committed an actual fraud against the DRE. It WITHHELD one year of incriminating emails. That’s clearly fraudulent per CA Civil Code, #1710. (That’s how they had defrauded the City of Palo Alto, about 2 years previous. They had it perfected.) So, they escaped discipline from the DRE state regulator.

Rebecca, the injustice is the PA realtor who got no punishment from the DRE and thus could do exactly the same to you next week. He’s still out there shouting how wonderful and smart he is. Remember: I was not his client. He literally knocked on my front door and began a fraud.

I am a bit surprised at the lack of curiosity in the responses about this corrupt realtor, who defrauded me, the City of PA, and a judge in Small Claims court, in its dishonest and unsuccessful zeal to best me. They withheld facts from the City to obtain a 100% erroneous tree report, which was then presented to the judge. That’s fraud under civil code #1710. Suppose a realtor withheld a roof report showing a faulty roof as you were buying. You OK with that? think not.

Later, the realtor hired an attorney to defend himself against my charge of fraud. Let me tell you that attorney, looking at the clear paper trail, had a tough assignment trying to do that and never denied it.

John, To restate the obvious. I was not “happy” to spend 2 years and $87 K in legal fees for what began as simple damage I had $84 K in damage from the previous owner. It was handled via a simple insurance claim. Not contentious, no attorneys. Here’s the physical tree damage and here are the bills. Ok, insurance claimant, you are right, here’s a check for 100% of your damage. (There is no deductible on a liability claim) This is insured by the neighbor, not by me. If this were damage in my yard caused by my own tree, no insurance covers it. This incident with the new owner began in small claims with $900. (After I had been paid $84K from the same trees a few years before.) The dishonest realtor spent probably $10k unsuccessfully defending a $900 claim for something which wasn’t even their property or their liability. Does this sound a little suspicious ?

John, I admit it. I have a bone to pick with my opponents. In my 70s, I had to spend years of my life and tens of thousands. Hundreds of hours. Sleepless nights. It was all caused by the greedy dishonest realtor who indemnified and misrepresented this to a tech guy Asian immigrant . The realtor then committed fraud after fraud (I counted 6) trying to prove none of my damage was real or whatever else he could dream up. The process with the City for tree removal should have been fast and easy. Nope. Resolved only through a lawsuit where they had no evidence, but was defended fraudulently by the realtor to try to save money from the neighbor’s claim against him. I will reveal to you now something quite amazing. The boss of the realtor said under oath he knew nothing about this for 3 years. Without his boss knowing, the realtor made representations, signed an indemnity, and then spent company money and salaried personnel resources like crazy trying to unwind it and/or cover it up. It wasn’t just money, this guy was fearful for his job. I do resent your quite direct implication that what I wrote about the tree process with the City is somehow tainted or biased or untrue because of my anger against both my dishonest opponents. I now do realize, seriously, having been through this, that attorneys run into dishonest people a lot. I was lucky, I suppose. I never did, in my professional life. This was not some thug in a one time encounter. This was a professional person, using cunning over several years. I have found out since that this guy is well known in the realtor community: a “notorious liar”, a “well known fraudster“

John Someone did walk into a nuisance, or approximately that. I said in writing I would sue any buyer. The buyer, my new neighbor, walked right into that. I did what I said (SURPRISE) and I won. He was genuinely surprised, he said under oath, that I sued him. The reason for his surprise was the dishonest realtor told him it would not be a problem.

Bobi, You sound VERY, VERY, VERY CONFUSED. Sorry about that. Let me clear it up for you. I bought in 1979. I had big damage, $84K, from roots in 2017, when the adjacent house was owned by someone else. It was handled via his liability insurance (State Farm). No controversy. No lawyers. Simple insurance claim. SF said, we see all this damage, we don't need to come anymore. Just send us the bills and we will pay. And SF did, to the penny. That house came up for sale in 2018, listed by a dishonest realtor. I immediately sent a notice to that realtor I would sue any buyer to remove the 3 redwoods of the neighbor causing ongoing damage. A certain fellow bought anyway. He bought because the realtor, wanting his commission, told him "according to information I have", this won't really be a problem. When it became a problem, this new neighbor ran, naturally, to the realtor, who had told him it would be no problem. (Meanwhile, I had told him I would sue him, so who would he run to for financial relief? DUH. Might I suggest there was misrepresentation and he had been damaged? He had overpaid. Who buys a home to walk into a lawsuit?). The realtor didn't want to pay him off, of course. The idea was to "prove" any damage was not the fault of the neighbor.

As we served the second suit, the "big suit", I told Missy (my attorney) of some fraud which had occurred during case #1, small claims. My opponents had indisputably defrauded the City of Palo Alto then, by withholding evidence, fraudulent under #1710. We jointly decided to spend more legal money and pursue this in court. There were certain legal advantages in doing this, assuming we won. This was the 3rd case, and this went right to Judge Christopher Rudy of the State Superior Court. Think of it as an adjunct to case #2.

Judge Rudy ruled in my favor in this "case 3". This is the only case which went fully to state court. This is when my opponents argued, in part, their behavior was justified by adhering to the PA ordinance. This is when Judge Rudy completely ignored the PA ordinance. He's a state judge, he's ruling on state law. There might be 4000 CA entities with local ordinances, and he's not bound by any of them. He doesn't know them, he's not bound by them, they are irrelevant. If you count up the total number of local ordinances, it might be over a million. So it was simply a question, for him, of who had state law on his side: Me or my opponent? He ruled I did, so I won.

 

Neighbor's tree planted next to property line - further from his house than from his neighbors' houses. Doesn't the decision to plant a huge tree in the corner of your lot show that you know it has detrimental affects and that you choose to minimize them to yourself and don't care if your neighbors suffer?

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Whether the state law giving you the fair use and enjoyment of your property will let you remove a "protected tree" might only be resolved through state court legal proceedings.

What we hope you take away from this is that fighting a legal battle even if you prevail and should prevail, should be close to your last choice of action. Second, don't assume that an amiable resolution can be worked out. Document your problem and your attempts to resolve it. Third, there may be others involved who are skewing decisions.

We talked for over two hours with the man whose house was damaged. We don't see how anyone with any depth of knowledge about the situation could doubt the harm it caused him and his wife. This is a quite brief summary of years spent eliminating ongoing damage to his house that was made worse by people who would not admit the obvious problem.