Case of the Day – Thursday, August 27, 2015

WRITE ME UP A VERBAL CONTRACT

putt150827OK, what’s a little New York case about a miniature golf course construction contract doing on a tree law blog?  It’s here as a cautionary tale …

A miniature golf operation called Oasis Park hired Bill Oberholtzer – who was both a miniature golf course owner and a mini golf course builder – to jazz up Oasis Park before the mini golf season started up in the Troy, New York, area. Disregarding the universally-accepted good practice in construction of starting with a nice, neat signed agreement setting out the scope of the work, payment terms, time to completion and other such details, the Oasis Park people and Bill pretty much sketched out their agreement on the back of a cocktail napkin. And that was a mistake.

Later, Oasis Park needed a more formal document in order to get its bank to release financing. Bill, of course, accommodated Oasis Park by signing one. You can guess what happened. When the parties’ working relationship soured, Oasis claimed that the accommodation document – and not the “cocktail napkin” – was the real deal between the parties covering the scope of the work. Bill countered that he had already been working for weeks, and the plans had changed.

You probably need a little more contract detail than you can fit on a napkin.

            You probably need a little more contract detail than you can fit on a napkin.

Nevertheless, within six weeks after some fateful April 29 “thing” occurred — and even the Court couldn’t tell what the “thing” was — Oasis fired Bill amid claims that he hadn’t adhered to some nonexistent schedule, hadn’t provided workers, and hadn’t provided materials. For good measure, Oasis claimed that Bill’s work was substandard.

Bill naturally argued just the opposite, asserting that he couldn’t buy supplies because Oasis Park wouldn’t pay him. The whole mess ended up in federal court, where the Judge threw up his hands and said no one was getting summary judgment. The entire kerfluffle was going have to be sorted out at trial.

So now, let’s all grab our calculators and figure out how Bill saved by not wasting money on a lawyer preparing a contract with Oasis Park up front. Not much, we guess. And you arborists, tree trimmers, loggers and owners – let’s remember this: No contract, no winners.

sign150827Paone, Inc. v. Oberholtzer, Slip Copy, 2007 WL 2455074 (N.D.N.Y., Aug. 23, 2007). Oberholtzer agreed to provide all labor and materials necessary to remodel Paone’s miniature golf course. Beyond that fact, the parties could agree on nothing.

Paone said that under a contract dated April 29, 2004, Oberholtzer to build a bumper boat pond, including walls, docks, light fixtures, a cave, a filter system, a perimeter walkway, and a staging-area deck. As well, Paone said, the contract required Oberholtzer to renovate the course’s clubhouse entrance, the third hole, and the practice green. Paone said that under to the contract, Oberholtzer began working in May 2004, but its laborers did not show up for work, causing the project to fall behind schedule. To rectify the situation, Paone claims that it hired temporary workers.

Even with these outside laborers, the project did not move forward because Oberholtzer failed to provide supervision and direction. Paone said it had to supply all materials to the site and hire various construction professionals to inspect the work. Paone contended that these professionals found that Oberholtzer’s work violated building-code requirements and was below the industry standard. After the project had gone on about a month, Paone notified Oberholtzer that it was in default of the contract.

Oberholtzer, on the other hand, claimed that he reached an agreement to perform work for Paone well prior to April 29, 2004. Oberholtzer said he began preparatory work in March. The April 29th document, Oberholtzer contended, was merely an estimate prepared at Paone’s request,intended by both parties to help Paone get a bank loan released. The April 29, 2004, agreement was conformed to an earlier budget from the winter of 2003-2004, which Paone had submitted to the bank to support its initial loan application.

golf150827Consequently, Oberholtzer argued, the estimate did not reflect intervening changes of which both parties were aware, including a different location for the bumper boat pond, changes in site elevations for the clubhouse and parking lot which required alteration of a ramp and deck, and additional concrete walkways on the course.

Oberholtzer said, he had already made significant progress before April 29, 2004, including filling in traps, reconfiguring the practice green, removing an existing sidewalk near the old practice green, building a deck between the seventh and eighth holes, and removing fixtures and equipment from the old clubhouse. What’s more, Oberholtzer asserted, he had also cleared and trimmed trees for a new picnic area, built retaining walls for a walkout basement, constructed a deck attached to the clubhouse, erected bumper boat pond walls and skimmer baskets, and backfilled the pond.

As far as the schedule went, Oberholtzer argued that the April 29, 2004, document did not contain a schedule or other time-related requirements. Oberholtzer said that Paone knew Oberholtzer would be opening and operating his own miniature golf course in Georgia at the end of May. Therefore, Oberholtzer claimed, Paone knew that Oberholtzer would not be available to work on the project on a regular basis. Furthermore, Oberholtzer argued that several weeks of delay resulted from the actions of an unrelated contractor, who placed heavy equipment in the area of the future bumper boat pond. Also, he said, Paone failed to make timely payments to enable Oberholtzer to buy materials and to progress with the project. Finally, Oberholtzer complained that Paone approved all building plans, and that town building inspectors routinely inspected the progress and noted no building code violations.

Paone sued for breach of the contract and for negligence, and then moved for summary judgment.

obfus150827Held:   Summary judgment was denied in this fact-laden morass. The Court observed that Paone’s causes of action for breach of contract and breach of the implied covenants of good faith and fair dealing both required first that there be an enforceable contract with sufficiently definite terms. Here, the parties could not even agree on whether the document was a contract, let alone what its terms might be. Paone contended the document represents the parties’ complete agreement, but Oberholtzer asserted that the document was an estimate used solely for the purpose of obtaining funding. While Paone said that the time for performance commenced in May 2004, Oberholtzer alleged that it had already completed substantial portions of the project prior to that time.

What’s more, the Court found, reference to the April 29, 2004, document wasn’t helpful because it contained no details about the parties’ responsibilities or the construction schedule. The document was labeled “Spring 2004 Construction” and merely set forth the various projects and the price for each. In light of these disputes, the Court held, it could not determine whether an enforceable contract existed between the parties without evaluating the parties’ conflicting factual accounts. Moreover, on the basis of the April 29, 2004 document alone, the Court could not determine the construction schedule or the parties’ respective contractual responsibilities.

A trial would be necessary to straighten the whole mess out.

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And Now The News …

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toddler150827Columbia, South Carolina, WIS-TV, August 26, 2015: Family of toddler killed by falling tree limb files lawsuit against Town of Irmo

The family of a toddler killed by a tree limb at an Irmo park is suing the Town of Irmo. The family said it has suffered mental shock, psychological trauma, and funeral and medical expenses from the loss of a child — all because the town and others were negligent. They’re seeking an amount yet to be decided. In late May 2014, Jacoby Latta was playing at Irmo Community Park during a church picnic when he was struck in the head by a falling tree limb. He suffered a fractured skull and a traumatic brain injury and died just hours later in the hospital, according to court documents. Now, more than a year later, the family is suing the town and other parties who helped construct this park. “When you read the complaint, you get an emotional response,” said legal expert Harrison Saunders. The complaint said Jacoby died in the arms of his mother and his 22-year-old sister, ultimately, because the Town of Irmo and the other defendants were “negligent” and “reckless.” The lawsuit claims “the limb was clearly dead and did not possess a single leaf,” that “prior to the incident, Irmo received several communications from concerned citizens notifying Irmo that multiple tree limbs had fallen,” and that “the defendants breached their duty by their failure to inspect the trees in the Park and by their failure to warn and/or make safe the risk of falling limbs.” The suit reads, “Despite being on notice of many dead limbs throughout the Park, Irmo elected to do nothing …”

Knoxville, Tennessee, News Sentinel, August 26, 2015: Federal judge dismisses suit against TVA over trees

A federal judge has dismissed a lawsuit against TVA over its tree-cutting policy, and plaintiffs are weighing whether to appeal the decision, their lawyer said Wednesday. On Monday, U.S. District Judge Tom Varlan dismissed a lawsuit by plaintiffs Donna Sherwood and others against the Tennessee Valley Authority over what plaintiffs said was an unnecessarily aggressive policy on clearing the right of way under its power lines. In a memorandum opinion, Varlan wrote that the lawsuit was moot because TVA had dropped a controversial part of this policy referred to as the “15-foot rule.” In this rule, TVA would remove any tree within its power line easements that could grow higher than 15 feet. “In other words, there is no longer a need to declare that TVA’s implementation of the fifteen-foot rule violated NEPA (National Environmental Policy Act) and, to the extent the Court so declared, the declaration would have no effect,” Varlan wrote …

trim150827Sacramento, California, Sacramento Bee, August 26, 2015: Tree cutting underway in Sacramento’s William Land Park

Sacramento may be the City of Trees, but the jewel of its park system will lose 66 of its approximately 2,000 trees in the coming weeks. This week, workers began removing unhealthy or structurally unsafe trees of a variety of species from William Land Park. Crews plan to remove about three to five trees each day over the next two weeks or so, according to city spokeswoman Marycon Razo. The trees destined for removal, marked by orange paint, are scattered throughout the 166-acre regional park. City officials say the trees are sick or have structural problems that may cause them to drop limbs and branches, posing a public safety concern. One of the park’s trees experienced structural failure Wednesday, causing a limb to split and fall onto two cars parked on a nearby street. The cause – and whether the tree had been targeted for removal – was unknown Wednesday, city officials said. The drought may be partially to blame, exaggerating health problems in already sick trees, Razo said. “When a drought comes, a tree’s systems can be weakened and become more susceptible to disease and pathogens,” said Sacramento Tree Foundation Education Programs Manager Kelly Conroy. “As a result, pests and diseases can spread through urban forests, affecting a much wider spread of trees …”

Wired.com, August 26, 2015: Think like a tree: What we can learn from the oaks that survived Katrina

Ten years ago this week, Hurricane Katrina ripped through New Orleans and the Gulf Coast, bringing floods and gale-force winds that devastated the region and displaced more than a million people. But New Orleans’ live oaks were surprisingly resilient, as biologist Janine Benyus describes in our first episode of a new video series on biomimicry, Think Like a Tree. As the tallest living things on earth, trees have developed strategies to protect themselves against threats to their leaved towers. In the process, they’ve “managed to solve daunting problems of engineering,” says Steven Vogel, a Duke biologist who studies the ways organisms structure themselves in moving fluids …

St. Louis, Missouri, KTVI-TV, August 26, 2015: FOX 2 gets results for Crestwood homeowner with property damage from publicly owned tree

Crestwood homeowner Eric Robertson finally had his questions answered about a tree that fell on Grant`s Trail and damaged his fence last week. Originally the City of Crestwood came in and moved the tree from the trail leaving behind piles of debris behind Robertson’s home. Robertson called FOX 2 to find out know who was responsible for maintaining the trail and clean up. Calls were made and within 24 hours there was a change, some of the debris was removed and the tree was cut up into smaller pieces. ‘I don`t know who cleaned it up I`m guessing it might be the city.’ Said Robertson FOX 2 spoke with Great Rivers Greenway Communications Director Emma Klues who confirmed they manage the trail and the City of Crestwood maintains part of it. She also says the tree should stay exactly where it is to blend with the ecosystem. ‘We want nature to take its course. The City of Crestwood maintains the trail 8 feet on either side they mow and take care of that area. The areas on either side are nature areas and open public land,’ said Klues …

 

claremont150826Ontario, California, Inland Daily Bulletin, August 25, 2015: Drought taking toll on 1,600 trees in Claremont

Preservationists and residents are concerned the ongoing drought is taking a toll an estimated 1,600 street and park trees, out of the 24,000, which are in extreme danger of not surviving the summer. Claremont officials, Sustainable Claremont’s Tree Action Group and Tree Coalition, which is led by Claremont Heritage, are working to preserve the city’s urban forest. “We met with the mayor, and we’ve asked that he declare an emergency — you are seeing this drought slowly take our trees, and it could be devastating. It’s a real crisis that we have to address,” says Mark von Wodtke, a landscape architect who is working with Claremont Heritage to address the issue. When a tree becomes stressed, it becomes more prone to disease. It then becomes a costly endeavor to prune the disease, or in many cases, it’s the beginning of the tree’s decline, von Wodtke explained …

Bend, Oregon, Bulletin, August 25, 2015: Woman sues neighbors over felled trees

A 76-year-old Bend area woman is suing her neighbors for cutting down trees on her property, claiming the couple felled the “ancient” junipers to enhance their views of the Cascades, court records show. An attorney on behalf of Charlotte Nash filed suit in Deschutes County Circuit Court last week, asserting she is entitled to damages for the removal of six juniper trees on her property northwest of Bend — in total, $450,000. The complaint alleges Dale and Veronica Partridge, who in October purchased a property from Nash adjacent to her own in an unincorporated area north of Bend on Innes Market Road, trespassed onto her property and cut down at least six juniper trees for better views of the Three Sisters. The Partridges “took advantage of plaintiff’s age and vulnerability” in trespassing and cutting down the trees, according to the lawsuit, which asserts the Partridges committed timber trespass, as well as financial elder abuse. “Under Oregon law, in cases of timber trespass … basically those damages get tripled if the cutting was a willful act,” Nash’s attorney, Michael McGean of Bend’s Francis, Hansen & Martin LLP, said Tuesday. “If it’s just an honest mistake then the damages are doubled …”

sfo150826San Francisco, California, Streetsblog, August 25, 2015: If trees on Van Ness matter so much, good thing they’ll double with BRT

After the construction of bus rapid transit, Van Ness Avenue will have more than twice the number of trees it does today. But the SF Chronicle and local broadcast news reporters didn’t let that get in the way of blowing a story about tree removal notices completely out of proportion. Reports from the Chronicle, which kicked off the media fracas yesterday, as well as ABC, KTVU, and NBC featured misleading headlines like, “San Francisco officials to cut down nearly 200 trees.” The whole manufactured controversy, which the Chron doubled down on today, depends on glossing over the fact that the BRT project involves planting about 400 new trees to replace the 193 trees set for removal. Media outlets would have their audiences believe “dozens” protested the dastardly replacement of trees as part of the BRT project, but none provided an actual count of the speakers at the Department of Public Works hearing on permits to remove the trees. So here it is: There were 26 speakers; 16 against, five in support, and five who were neutral but expressed concerns about the importance of urban trees. Those numbers are from Bob Masys, a senior engineer for the SF County Transportation Authority (not the SFMTA, as the Chronicle reported) …

Casa Grande, Arizona, Tri-Valley News, August 25, 2015: Salt cedar trees add fuel to wildfires

The tiny seedling was brought over from Eastern Europe and parts of Asia nearly 200 years ago and planted along riverbanks across the United States, mostly in the southwest, to prevent erosion. It grew fast, its thick branches and oily leaves spreading out across five states in the West, including Arizona. As years passed, it became obvious that the introduction of salt cedar, or Tamarisk, trees was a mistake. The invasive tree has an extensive root system that sucks up nearby water and leaves that leak a salt-like substance, killing native plants nearby. It also burns hot in wildfires, complicating efforts to bring blazes under control …

Beverly Hills, California Canyon News, August 25, 2015: Mature trees need professional help

Bad annuals or poorly tended lawns can get unsightly, but are not too hazardous. However, a tree can be extremely hazardous if it becomes unstable or develops structural deficiency. Falling trees or limbs are very dangerous, and can cause all sorts of damage to anything within reach. Arboriculture is therefore the most important horticulture in home gardens with trees. Sadly, many trees are severely damaged by improper pruning, which is often performed by those hired to prune them. Some get pruned too severely, or get pruned in the wrong season. Others do not get pruned aggressively enough. Either way, many get structurally compromised so that they drop limbs as they mature. Some trees get damaged too severely to salvage. This is precisely why arboriculture should be done by qualified arborists …

Monroe, Louisiana, News-Star, August 25, 2015: Short-rotation trees hold promise for Louisiana landowners

A movement in Europe from coal to wood-fired electric generation has created a worldwide market for wood pellets, according to experts at a recent symposium. Planting and managing short-rotation stands of fast-growing hardwood tree species can help meet demands for wood pellets and similar products made from small diameter, pulpwood-sized trees in some regions, said AgCenter forestry researcher Mike Blazier. The wood pellet industry in Europe is growing in an effort to reduce greenhouse gasses, said Rich Vlosky, director of the Louisiana Forest Products Development Center in the LSU AgCenter …

 

rings150825Phys.org, August 24, 2015: Tree rings on Hawai’i could hold new knowledge about El Nino

Trees can record centuries of history in their rings – changes in rainfall and temperatures, even evidence of fires sweeping through a region or the climatic impacts of volcanic eruptions. Annual rings are common in trees that experience seasonal climate variability and dormancy, but in the tropics, these records are rare. Now, for the first time, scientists have documented consistent annual tree rings in a native species on Hawai’i. The history recorded in the ring widths could improve our understanding of the climate in the eastern tropical Pacific, a region where much of the variability of the El Niño-Southern Oscillation (ENSO) originates. It’s also an area whose forests are home to many unique and threatened plant and animal species. The trees – Sophora crysophylla, commonly known as māmane – were found on the slopes of Mauna Kea, a dormant volcano on the island of Hawai’i that gets frost and even snow during the winter months. In 2009, a fire swept across the area, killing several of the trees. From those trees, the scientists were able to cut full cross sections of the trunks to compare and analyze the tree rings. They found common patterns of annual ring growth between trees that could be cross-dated, establishing the annual nature of ring formation in māmane …

Wichita, Kansas, Eagle, August 24, 2015: Man dies in tree-trimming fall in west Wichita

A 41-year-old man died Sunday after he fell more than 20 feet while trimming a tree, police said. The man was cutting limbs at about 12:20 p.m. Sunday in the 4400 block of West 11th when he fell 24 feet to the ground, Lt. James Espinoza said. That’s near 13th and Zoo Boulevard. He struck his head on concrete and was pronounced dead at the scene ...

paramedic150825Minneapolis, Minnesota, KARE-TV, August 24, 2015: Woman killed in Minnesota tree-trimming accident

Rochester police say a 58-year-old woman has died after a large branch apparently crushed her as she trimmed trees. Police were called to a medical emergency Saturday afternoon in southwest Rochester. A homeowner said she had hired Dawn Zollman of Rochester, who had a small tree service business, to do some work. Police Lt. Mike Sadauskis says the homeowner discovered Zollman in the backyard, where a branch she had removed apparently had fallen on her and pinned her to a tree. The limb was about three feet around and 25 to 30 feet long. There was no indication that Zollman had been in the tree or on a ladder …

St. Louis, Missouri, Post-Dispatch, August 23, 2015: For struggling coal miners, are trees the answer?

Tom Clarke is planting the seed that he hopes will save, or at least cushion the fall, of the coal industry that is so tied to the Appalachian region he calls home. Actually, for his plan to work, he’ll have to plant hundreds of millions of them. The Roanoke, Va., hospital executive and conservationist turned heads last week when his Virginia Conservation Legacy Fund said it would acquire some of the last remaining assets of Patriot Coal, subject to bankruptcy court approval. Through a new coal company it formed, ERP Compliant Fuels LLC, Clarke’s environmental group would take over some closed mines and one that’s still producing. And it would keep mining coal there. Meanwhile, his group would plant trees. Millions of them. Enough to suck up 10 percent to 30 percent of the climate change-causing carbon dioxide that burning the coal would emit. They’d get the amount certified and attach it to the coal, creating a premium product …

Vancouver, British Columbia, August 24, 2015: Planting trees in the city makes residents healthier, study shows

A study of Toronto shows that adding 10 trees per city block makes residents healthier — by the same amount as raising their incomes $10,000 per household. It’s well known that rich people enjoy better health than those in poorer neighbourhoods, the University of Chicago scientists who did the research knew. But their close look at Toronto showed that greening up a neighbourhood is also effective in keeping people healthy …

bus150824San Francisco, California, San Francisco Chronicle, August 23, 2015: Neighbors speak up for trees facing ax to make room for bus line

Last month, 193 trees along Van Ness Avenue were served death warrants when the city plastic-wrapped removal notices to their trunks. Construction of San Francisco’s first bus rapid transit system begins next year, and the trees will have to go to make way for the line. In their place 401 new trees will be planted along the busy corridor. But some neighbors are protesting what they say are halfhearted attempts by the city to save the street’s urban forest. Others say they were never informed of the construction and don’t understand why the trees need to be chopped down. “This has just been a nightmare,” neighbor Mary Anne Kayiatos said. “It is a devastatingly awful thing to do to the San Francisco community. Trees make urban living a little more tolerable. Oh my God, this is so bad. I can’t even believe it.” The buses will run on Van Ness between Lombard and Mission streets, one of the busiest corridors in the city. If approved by the Department of Public Works Monday, the trees’ removal would coincide with construction next year of the $158.8 million system …

Butte, Montana, Montana Standard, August 23, 2015: Rare fallen trees led to I-90 tragedy near Lookout Pass

They please the eye, helping break up the monotonous miles that plague much of the U.S. interstate highway system. But forested medians — those occasional islands of trees that divide freeway traffic flowing in opposite directions — can turn deadly, as tragically demonstrated during the violent storm of Aug. 10 that blasted western Montana. Chris Ramsey, 21, a University of Montana student and gymnast and coach at Bitterroot Gymnastics, died after the sport utility pickup he was driving rammed into two large trees that were blown down on Interstate 90 four miles east of Lookout Pass and the Idaho line. It was the worst of a series of crashes caused by the downed trees not far from the entrance to the Denna Mora Rest Area. And it raised questions about how safe an already dangerous stretch of the four-lane mountain highway is when the wind blows. “We’ve had trees fall onto the interstate before, but we never had a horrible outcome like this one was,” said Montana Highway Patrol Sgt. Roman Zylawy, who has patrolled in Mineral County for more than two decades. The trees that fell were both live green trees that stood outside of the “clear zone” of roughly 30 feet, according to the Montana Department of Transportation. “Department staff does go out and monitor those treed or forested medians,” MDT spokeswoman Lori Ryan said Friday. “They look for trees that are hazardous or in imminent danger of failure, such as leaning trees, rotted trees, trees that aren’t healthy, and at that point in time those trees are removed …

storm150824Green Bay, Wisconsin, Press Gazette, August 21, 2015: Why trees fail during a storm

Removing damaged trees, broken branches and debris after stormy weather is a tedious task and can be expensive. Oftentimes, examining the damaged trees can provide a better understanding of the cause of its failure. Three common factors for a tree’s failure during severe weather are weak branch union, decayed wood and root problems …

Gouverneur, New York, North Country Now, August 23, 2015: Mulch ‘volcanoes’ could be stifling North Country landscape trees

When you think about it, trees in our landscape have it pretty rough. They don’t get to choose their neighborhood, good, bad or indifferent. Depending where they’re planted they may have to contend with “visits” from territorial dogs, “materials testing” by late-night fraternity mobs, entanglements with errant kites, and other issues. Rooted in one spot day in and day out, year after year, they suffer from—well boredom, I imagine. And from restricted root area, drought stress, competition from turfgrass, reflected heat from pavement and buildings, deicing salt in the soil, that sort of thing. But in recent years there has been an epidemic of seismic proportions that threatens the well-being of our beloved shade trees. Volcanoes. That’s right, over the past 10 to 20 years we’ve had an outbreak of mulch volcanoes. They seem to erupt at the base of landscape trees, particularly young ones, and the results aren’t pretty. Banking mulch around the trunk of a tree can have severe detrimental health effects (for the tree, just to be clear). For one thing, insect pests are chickens. Like vandals and Internet trolls, they rarely do their dirty work in the light of day. No, they like it dark, and preferably damp, like under a pile of mulch (or in Mom and Dad’s basement, in the case of trolls). Wood borers and bark beetles love a mulch volcano because it gives them free access to the tree trunk …

Kansas City, Missouri, KSHB-TV, August 21, 2015: Some Columbus Park neighbors want their view back after developers cut down trees

A group of neighbors in the Columbus Park neighborhood near River Market want their view back after developers tore down a line of trees surrounding a skate park. Keelin Austin helped build the skate park nine months ago and now sees it as a place the whole neighborhood can enjoy. “It was so cool to see how the neighborhood got involved and little kids started skating because of us,” said Austin. But now, a piece of their new hangout spot has changed after developers tore down a row of trees. Columbus Park Developers LC plans to eventually build at the site of the park, although there’s not a specific project in the works. Dan Musser, who is a part of the project, told 41 Action News they cleared the trees to provide a better view and to clear up some of the trash there. “It was inconsiderate to the people that have put so much hard work into improving the area,” said Dan Wayne, who lives in the area …

logs150821Fresno, California, KFSN-TV, August 20, 2015: Dying trees prompts regulation change for loggers

Concerns over dying trees in the sierra has prompted a regulation change. Cal Fire is making it easier for loggers to cut down dying trees. These new regulations mean that loggers can come and start cutting down trees in a matter of days instead of waiting a month for the right paperwork to be filed. Loggers are hard at work in Pinehurst, the forest is dying, creating fuel for wildfires, plus the trees, are threatening to fall. Forester Jeff Gletne first came to the Pinehurst property in early summer. He said at the time only 10 percent of the trees were dead, in a few weeks that’s all changed. Gletne said, “About the time we moved in a whole flight of bark beetles came in and devastated this place.” The drought has created perfect conditions for bark beetles to thrive killing off weakened pines. Other trees are dying because they’re thirsting for water. The conditions have prompted Cal Fire to make the regulation change …

San Luis Obispo, California, KSBY-TV, August 20, 2015: ‘Killer trees’ threaten firefighters

Smoldering oak trees fell overnight — sometimes a dozen in a row — threatening firefighters on the line of the Cuesta Fire. Crews say four years of extreme drought is to blame for dry, brittle trees prone to fracturing easily after catching fire. “It could have a domino effect, so you won’t be able to see a tree if you’re working the line 10 or 15 trees in,” Chip Laugharn, with the U.S. Forest Service, said. Firefighters said the oak trees were imploding. “This is something we have never seen. At times 20 trees are falling. This is likely because of the drought,” CAL Fire engineer Bennet Milloy said …

gmo150821Phys.org, August 20, 2015: Regulatory, certification systems creating paralysis in use of genetically altered trees

Myriad regulations and certification requirements around the world are making it virtually impossible to use genetically engineered trees to combat catastrophic forest threats, according to a new policy analysis published this week in the journal Science. In the United States, the time is ripe to consider regulatory changes, the authors say, because the federal government recently initiated an update of the overarching Coordinated Framework for the Regulation of Biotechnology, which governs use of genetic engineering. North American forests are suffering from an onslaught of threats including local and imported pests, as well as the impacts of a shifting climate. These threats pose “a real and present danger” to the future of many of our forest trees, notes Steven Strauss, a distinguished professor of forest biotechnology at Oregon State University and lead author on the analysis. “The forest health crisis we’re facing makes it clear that regulations must change to consider catastrophic losses that could be mitigated by using advanced forest biotechnologies, including genetic engineering,” Strauss said. “With the precision enabled by new advances in genetic engineering – and their ability to make changes more rapidly and with less disruption to natural tree genetics than hybrid breeding methods – they can provide an important new tool …”

Hampton Roads, Virginia, Chesapeake Clipper, August 20, 2015: Big tree trouble in Chesapeake

Mammoth branches from a towering willow oak fell in Scott Buxton’s front yard during a recent storm. Downed branches – the size of trees – and huge piles of freshly cut firewood littered his lawn. Ominous cracks of the splitting limbs echoed across the Buxton property, and the house and ground shook when the massive limbs struck the earth. The stately willow oak located off Gallbush Road once reigned as the national champion willow oak in the country. Currently it ranks as the second largest tree of its species – Quercus phellos – in Chesapeake. “We haven’t had a whole lot of trouble with it. The tree has always been pretty solid. It’s lost a few limbs here and there,” Scott Buxton said. “When the wind blows, a tree that size is going to drop some limbs, but nothing like this.” Buxton called the Big Tree Hunters – Gary Williamson and Byron Carmean – to apprise them of the plight of the former national champion. “We thought that Byron and Gary might come out to look at it and maybe reach out to some of the people that they know who specialize in trees,” Buxton said. “I figured if anybody knew what to do, it would be these guys …”

Walnut Creek, California, Contra Costa Times, August 20, 2015: Many Tri-Valley trees sick, dying from drought

If your trees could pant, they would. After four years of little rain and decreasing irrigation, redwoods, birches and all their brethren are parched and, in many cases, beginning to die in large part as a result of good intentions carried to extremes. “They’re in really bad shape,” said arborist Greg Dubatowka, of Alexander’s Tree Service in Livermore. “Everybody’s doing their part in cutting back on water usage, and doing that in a large way by cutting down on the use of their sprinkler system … They don’t realize that their trees have been getting most of their water from that, and when they cut back on lawn watering, most trees can’t adapt to that change in their watering system, and therefore are dying or stressed really badly.” The good news is that with a little attention — and a surprisingly small amount of water from efficient soaker hoses — most can be kept healthy until the rains come again. In a normal year, the valley’s 12 to 15 inches of rain is absorbed a few feet into the soil, where it remains as a life-giving resource for trees when rain or irrigation is scarce …

deadtree150820Phys.org, August 19, 2015: Drought implicated in slow death of trees in Southeastern forests

It’s obvious drought can kill trees. But a new Duke University study of nearly 29,000 trees at two research forests in North Carolina reveals it’s not always a swift or predictable end. “This is the first research to show that declines in tree growth during a drought can significantly reduce long-term tree survival in Southeastern forests for up to a decade after the drought ends,” said Aaron Berdanier, a Ph.D. student in forest ecology at Duke’s Nicholas School of the Environment, who led the studyBy identifying the species at highest risk and the environmental factors that shape the odds of survival, the new study may give managers better ways to recognize and reverse drought-induced declines in the region’s forests before it’s too late, said James S. Clark, Nicholas Professor of Environmental Science at Duke …

Santa Cruz, California, Sentinel, August 19, 2015: Fog belt: Santa Cruz trees faring better than some in drought

While California grapples with the drought on the large scale, Santa Cruz is looking to the details of tree conservation, helping them survive one fog-heavy morning at a time. City Urban Forester Leslie Keedy said that, not surprisingly, the tree species best weathering the state’s fourth year of drought are native to the area. However, city-managed ornamental trees lining streets and filling local parks are about 80 percent non-native, she said. “What we’ve seen mortality on so far is the riparian tree species. Primarily, we’re seeing alders and birch that are dying in landscapes. The tops are dying,” Keedy said. “Some of the ornamental pair trees that are ‘street trees’ are a little bit drought-stressed.” While the ongoing drought has wreaked the most havoc on local plant life during Keedy’s 15 years with the city, she said the area is lucky to benefit from the annual summer fog belt. Many area redwoods gather needed moisture from the air each morning, even as their inland peers outside the county have begun to fail, she said …

trimkill150820Santa Rosa, California, Press-Democrat, August 19, 2015: Man killed in tree-trimming accident near Sebastopol identified

A 21-year-old Santa Rosa man was identified Wednesday as the victim of a fatal tree-cutting accident Tuesday in the Bloomfield area of Sebastopol. David Mendoza, an employee of North Bay Tree Care, died after the company owner, who was some 80 feet up a tree, cut off a length at the top that apparently fell on Mendoza, according to the Sonoma County Sheriff’s Office. North Bay Tree owner Ben Cervantes had trimmed the limbs off a large pine tree outside a rural Thorn Road residence and was topping the tree when the deadly incident occurred shortly after 2:30 p.m., Sonoma County sheriff’s officials said. Authorities said the falling log was about 8 inches in diameter …

West Lafayette, Indiana, Purdue University, August 19, 2015: Purdue experts: Tree deaths across Indiana may be related to weather stress

Homeowners and landowners need to keep an eye on trees that may be dying from weather-related stress, Purdue University tree experts say. Symptoms recently noted on mature oak, tulip and maple trees in Indiana include leaf scorch – the browning of leaves – branch dieback and premature defoliation. Rosie Lerner, Purdue Extension consumer horticulture specialist, said healthy trees do not die quickly, and there are likely numerous stress factors adding to what is happening to some trees. “Indiana weather has given us pretty much every extreme in the last few years from extreme heat and drought, to bitter cold and high winds and to floods,” Lerner said. “The added stress, especially on urban trees that have compromised root systems, may make them more vulnerable than non-urban trees.” With the water levels in most counties in Indiana this year being above field capacity most of June and July, water stress is likely causing the symptoms, said Kyle Daniel, Extension horticulture program specialist. “Tulip trees and most oaks can’t tolerate flooded conditions, but certain maples, like silver maple, can tolerate compacted or flooded soil for a period of time,” Daniel said …

Cañon City, Colorado, Daily Record, August 19, 2015: Cañon City Finance Director Harry Patel: Dead trees a costly problem

Cañon City Finance Director Harry Patel on Wednesday gave the Public Works committee an overview of what likely could appear in the proposed 2016 budget that will be released during a budget workshop Sept. 18. One thing Patel wants the council to keep in mind, in addition to city projects, maintenance and improvements, is the dead tree problem that is expected to worsen this winter. He said it’s a major expense that was not anticipated. Director of Parks and Facilities Rex Brady said a survey completed in 2014 identified about 400 dead trees in city rights-of-way that needed to be removed, and that number has doubled after severe weather in November 2014. “It’s a bad situation that’s only going to get worse,” he said …

ghost150819Sacramento, California, KTXL-TV, August 18, 2015: Dead trees in Sierra foothills resulting in ‘ghost forests’

Findings released this week by the U.S. Forest Service show that approximately 6.3 million trees are dead in the Sierra foothills. The drought and bark beetle infestations are to blame. A similar survey in April found more than 12 million dead trees in portions of the Sierra. The new report looked specifically at the foothills between Placerville and Porterville. Researchers flew over the entire survey area in a small plane in July. The trees in the southern portion of the survey were the hardest hit. In some cases, large groves of trees are completely dying off, leaving what is known as a “ghost forest,” where seeds are unable to sprout and grow into a new forest …

Pierre, South Dakota, Capital Journal, August 18, 2015: Tree trimming fees added

Pierre has added fees to its tree trimming ordinance. The City Commission had previously discussed the matter at its Aug. 11 meeting. At that meeting, commissioners decided to hold off acting on the ordinance for a week. On Tuesday, the measure passed. Under the ordinance, homeowners who own trees must keep the branches trimmed so there is an 8-foot clearance between sidewalks and the tree branches. For the streets, the clearance should be 12 feet, said Tom Farnsworth, parks and recreation director for the city. Now, if a tree is out of compliance, the homeowner can trim the tree, or hire an outside company to do it. If this is not done, then the city will step in — but charge the homeowner to do the job …

douche150819Houston, Texas, Chronicle, August 14, 2015: ‘House for sale by owner because my neighbor’s a douchebag’ sign raises stakes in Texas feud

A front-yard sign calling a neighbor a “douchebag” may not be the best way to change the neighbor’s behavior. But for one frustrated Farmers Branch family, it’s at least getting a lot of attention. James and Lisa Price — who have a sign in their yard that says “‘House for sale by owner because my neighbor’s a douchebag” — have appeared on Dallas TV and now say they’re getting calls from New York news outlets. The sign went up Aug. 7, after months of tension between the Prices and their next door neighbors culminated in the Prices getting a $121 ticket from the city over their dogs, James Price said Friday. Shortly after a retired couple moved into the rental house next door about two years ago, Price said the wife came over “a few times” to ask that the Prices keep their four dogs inside the house until 9 a.m. because the retirees liked to sleep late …

Providence, Rhode Island, WPRI-TV, August 18. 2015: Warwick mayor: It would be impossible to inspect every tree

One day after a tree likely damaged in a storm earlier this month crashed down on cars waiting at a stoplight, Eyewitness News asked Mayor Scott Avedisian what can be done to prevent another accident. “It would be virtually impossible to inspect every tree in the city of Warwick,” the mayor said. The tree that fell Monday was one of many damaged by the Aug. 4 macroburst that took down trees, limbs and utility poles. Two weeks later, a tree on the corner of West Shore Road and Main Avenue fell onto cars, temporarily trapping four people. The Assistant Fire Chief said it was likely the tree was damaged by the storm. Mayor Avedisian pointed out the tree was on private property. “We’re not going to go onto private property and demand that trees be removed,” he explained …

Beaufort, South Carolina, Gazette, August 18, 2015: City dispels misconceptions about proposed Beaufort tree rules, tables discussion

The city of Beaufort’s tree expert set out to dispel misconceptions about proposed changes to tree rules before the discussion was shelved Tuesday. City landscape architect Liza Hill told City Council that proposed changes to expand the definition of “grand trees” and require certain measures for removed trees would not apply to single-family homes. Homeowners still require city approval to remove trees, she added. She also reiterated that trees saved during development on a property would count toward the trees a developer would be required to replace. Hill used the example of Whitehall Plantation on Lady’s Island, for the benefit of developers Steve Tully and Dick Stewart, who were present for a separate discussion on the development. Hill said the property has a surplus of trees and that “mitigation” required by proposed changes — which include a “reforestation” fee of $70 per caliper inch if trees can’t be replanted on site — wouldn’t apply to developers. The measurement for the fee is the diameter of the tree 6 inches above the ground. The money collected by the fee would go into the city’s tree fund for tree maintenance and planting new ones …

cutting150818Salt Lake City, Utah, Tribune, August 17, 2015: State, federal criminal probes underway in mass destruction of Big Cottonwood Canyon trees

State and federal criminal investigations are underway into the destruction of nearly 100 trees at an unauthorized housing development in an environmentally-sensitive tract of Big Cottonwood Canyon. Forest rangers working on behalf of both Salt Lake County and the U.S. Forest Service are trying to determine how a tree-removal crew came to cut down more than 60 trees on the proposed Silver Hill subdivision in Silver Fork in July, and then went on to fell more than a dozen on a neighbor’s property and 17 in the adjacent national forest. Some of the trees appear to have been more than 200 years old, county officials said. Planning officials contend all the trees were illegally destroyed. “Everything is on the table,” said Salt Lake County District Attorney Sim Gill, who is also considering civil penalties …

Water Online, August 18, 2015: Planting trees a cheap solution to wastewater discharge regs

Trees are a solution for small water utilities who are concerned about the cost of cooling treated wastewater before it is discharged into the environment. “Five years ago Medford, Oregon, had a problem common for most cities — treating sewage without hurting fish. The city’s wastewater treatment plant was discharging warm water into the Rogue River. Fish weren’t dying, but salmon in the Rogue rely on cold water. And the Environmental Protection Agency has rules to make sure they get it,” Environmental Health News reported. The Oregon Department of Environmental Quality explained why temperature rules exist. “The temperature water quality standard is intended to protect salmon, steelhead, trout and other cold-water fishes, the most sensitive beneficial uses in the water body. The temperature standard is also protective of the different life stages of cold water fishes including spawning, rearing, and migration,” the regulator says. Medford figured out a relatively cheap fix: planting trees …

MFA150818Saint Petersburg, Florida, Saint Petersburg Blog, August 17, 2015: Downtown St. Pete Kapok tree-cutting rumors are not true

Put the chains away. The Kapok tree in front of the St. Pete Museum of Fine Arts is not coming down. A rumor surfaced over the weekend that the giant Kapok tree in front of the museum where generations of children have climbed along St. Pete’s Beach Drive was going to be removed to make way for an addition to the museum. According to Susan Robertson, MFA’s marketing director, there are no plans whatsoever to expand. “Somebody started a rumor,” she said. “And it created a huge uproar …”

Houston, Texas, KHOU-TV, August 15, 2015: Large tree branch falls on picnickers in New Braunfels

While picnicking at Hinman Island, a group of people suddenly found themselves underneath a large tree branch that had snapped with no warning Saturday. At around 7:20 p.m. New Braunfels police and EMS were dispatched to the area where eight people suffered from non life-threatening injuries. Four of those picnickers were taken to hospitals. According to authorities, no one was swinging from or climbing the large branch, which was hanging about 20 feet above the ground …

Seattle, Washington, KING-TV, August 17, 2015: Poplar trees grown for biofuels tackle obstacles

Harvesting trees for biofuel may change the energy market in the Pacific Northwest. The Advanced Hardwood BioFuels (AHB) Northwest Project is hoping to build what would be the world’s first biorefinery for trees. The growth rate of poplars also grew a new idea for Port Angeles tree farmer Joe Novak. “When it comes to Douglas Fir or Red Cedar, you have to wait 50 years,” he said. Not so with poplars, typically ready for harvest in just 3 years. It’s why Novak joined others on a tour of AHB’s Stanwood tree farm. The farm’s 120,000 hybrid poplar trees are part of a $40 million federal grant for biofuel research. It’s one of 4 farms producing the trees in California, Oregon, Washington and Idaho to see how they fare in 4 different states. “Poplar is a real good feed stock for producing fuel.” Rick Gustafson said. Though corn is 5 times cheaper, they believe trees are a better investment regionally because trees grow more readily in the northwest …

grizzly150817CNN, August 13, 2015: Yellowstone grizzly put down after hiker killed

A grizzly bear was euthanized Thursday after an autopsy of a hiker confirmed that the bear killed him in Yellowstone National Park last week. Autopsy results confirmed that Lance Crosby, 63, died as a result of traumatic injuries sustained from a grizzly bear attack, park officials said. Additional evidence also pointed to the female bear as his attacker, they said. Two twin female cubs captured with her will be transferred to the Toledo Zoo sometime this fall, the zoo announced Friday. The cubs, which weigh around 50 pounds right now, are less than a year old. Wildlife officials said they’re too young to survive in the wild without their mother. An adult female grizzly can weigh up to 500 pounds …

Newtown, Pennsylvania, Bucks Local News, August 17, 2015: Newtown supervisors file suit against developer for cutting down beech tree at Villas development; seeking $85,500 in damages, court costs

The board of supervisors voted to file suit against McGrath Homes for cutting down a large copper beech tree at the entrance to the Villas of Newtown development in apparent violation of a court-sanctioned settlement to preserve both the tree and the adjoining historic farmhouse. The suit is seeking $85,500 in damages, the estimated worth of the tree according to a forensic arborist hired by the township to assess the damage …

yosemite150817Los Angeles, California, Times, August 14, 2015: 2 youngsters killed by falling tree limb while camping in Yosemite

Two young people were killed early Friday after a limb from an oak tree fell on their tent as they slept at a popular campground in Yosemite National Park. The names and ages of the minors were not released, and their deaths remain under investigation, according to park spokesman Scott Gediman. Tuolumne County sheriff’s officials said they will not release the young people’s identities. The youngsters were sleeping in their tent at the popular family Upper Pines Campground in Yosemite Valley. Then at about 5 a.m., a limb from a black oak collapsed on them, Gediman said. The park’s dispatchers received numerous 911 calls for medical assistance. When they arrived to the campground, the youngsters were dead. It is unclear why the tree limb fell, but officials said it wasn’t windy that morning, Gediman said. “Fallen branches like this one are a common occurrence across the park,” he said …

Southgate, Michigan, News-Herald, August 16, 2015: Large tree allegedly cut without property owner’s permission in Gibraltar

What likely started as a simple misunderstanding between three different parties has led to the destruction of a decades-old tree, a possible civil suit and a lot of hard feelings among those involved. The owner of a house in the 31000 block of Adams called police earlier this month to report that a huge, mature maple tree at home had been cut down without her permission. The owner is renting out the house, and said the tenant may have been responsible. When officers went to the house and talked to the renter, she said she had talked to the owner about removing the tree and thought she had been given verbal permission to have it removed, though she added that she had nothing in writing about it …

Oakland, California, Inside Bay Area News, August 16, 2015: California drought: ‘Emergency situation’ for state’s trees

The rush to save water is claiming legions of unintended casualties — California’s trees. Specimens that have stood tall and strong for decades are stressed and dying because of the drought, as Californians turn off spigots to comply with Gov. Jerry Brown’s mandatory conservation measures. All over the state — in yards, on median strips and along freeways — ghostly sheaves of brown leaves will be an enduring symbol of the drought, long after winter rains resume. Their loss will reduce habitat, shade and property values, experts say. “It’s an emergency situation. These trees are everywhere, all around us, and are suffering,” said Rhonda Berry, president of Silicon Valley’s urban forestry nonprofit Our City Forest. She is particularly alarmed by the death of stately coastal redwoods in San Jose’s Bramhall Park and elsewhere around the South Bay …

savetree150814Albuquerque, New Mexico, KQRE-TV, August 13, 2015: City to tear down trees at Albuquerque park, neighbors fight back

A tree fight is brewing in Albuquerque. People on the Westside are up in arms because the city wants to tear down about a dozen of trees at a city park. “So here is one of the trees that’s marked for excavation,” said John Gusich. John has lived in Albuquerque for years. He visits the Santa Fe Village Park near Unser and Montano often. He loves the shaded sidewalk nearby. “It’s rather sunny, pretty hot if you can find shade it’s worth its weight in gold, so I think the trees are good just for that,” said Gusich. However, the leafy trees might not be hanging around for much longer.  Construction is already in the works to put in a bike path near the park in place of about a dozen of the trees. Neighbors don’t like the idea. They’re fighting back by posting flyers on the trees urging people to call the mayor’s office to save the more than 20-year-old trees ..

Westchester, New York, Journal News, August 13, 2015: NYSEG mistakenly cuts down Lake Carmel man’s trees

A Lake Carmel man said his dispute with a utility company and its contractor over two trees on his property that were mistakenly cut down has been resolved after the contractor was contacted by a reporter on Thursday morning. “I’m very satisfied and I have The Journal News to thank for it,” John Shanley said late Thursday, several hours after the newspaper contacted a Trees Inc. foreman hired by the New York Electric & Gas Corp. to prune trees along Longfellow Drive. “They weren’t answering my calls or doing anything until the newspaper got involved.” Earlier this week Shanley said that he was “like a raging bull I’m so angry,” over the felled trees. Shanley, 55, said Dan Ruiz, a foreman for Trees Inc. came to see him last month to discuss work they were planning to do on his road. The company was contracted by NYSEG to trim and remove branches considered too close to utility wires. Told that several of his trees would be trimmed, Shanley signed a checklist stating that branches would be pruned and debris cleared. A box providing for the removal of trees was not checked. Shanley was on his way out when the work crew showed up on Aug. 3. “When I came home, I couldn’t believe it,” he said on Monday. “They’d cut down two maple trees and left a big mess. There was debris all over, and a TV cable was hanging down. There were wildflowers and a hedge there that gave us privacy. Now it’s all gone …”

imtree150814Queens, New York, Chronicle, August 13, 2015: Trees mysteriously cut in Whitestone

They were two in a million, but now they’re dead. Rich Yanniti drives the Q15A bus along 10th Avenue in Whitestone and recently noticed the fallen trees along his route. He and at least one neighbor are displeased to say the least. Both were planted this spring as part of the city’s MillionTreesNYC initiative and their posts still stood this week. Their tags still indicated that they were linden redmonds, but the lines beneath the words “tree cared for by” were blank. And the trees were felled. The cuts were smooth, indicating the intentional work of a saw blade. One was sawed down about a month ago, Yanniti believes, and the other one was slain more recently, around Aug. 6. Both were still in place in front of 151-45 10th Ave. as of last Sunday afternoon …

map150813Treehugger.com, August 12, 2015: Tool shows where cities need trees most

Urban tree mapping has become a popular thing and for good reason. Studies have shown that not only does living near trees make our bodies healthier thanks to cleaning the air around us, but they also make us happier and less stressed. They also cut down on the heat island effect and provide needed shade for kids and older people. These are all things that city leaders would want for their residents. A new urban tree mapping tool called Trees and Health App, developed by researchers at Portland State University and funded by the U.S. Forest Service, not only maps the distribution of tree coverage around cities, but lets city planners (and anyone else for that matter) dive deeper into the data to see which neighborhoods on a micro level need trees most to best plan tree planting projects …

New York City, New York Magazine, August 12, 2015: High tree-sun? Kim Jong-un reportedly executed official who disagreed with his plan to plant trees

North Korean leader Kim Jong-un reportedly ordered the execution of vice-premier Choe Yong-gon by firing squad earlier this year, according to South Korea’s Yonhap news agency. South Korea’s Unification Ministry, which could not independently confirm the report, released a statement saying that Choe had not been seen publicly since December 2014. Choe reportedly expressed “discomfort” with Kim Jong-un’s “forestation policies.” Facing a massive drought, the government recently planned to plant trees to replenish the soil and stop erosion — although many of the trees chosen would take forever to grow and wouldn’t have solved the problem too quickly, according to USA Today …

eagle150813Vancouver, British Columbia, CKNW Radio, August 12, 2015: First Nation near Site C dam seeking injunction against tree cutting

BC Hydro’s decision to cut down trees which are the home to nesting bald eagles is ruffling a few feathers with some local First Nations. “It’s something really that’s got my blood boiling that they’re going to cut down eagles’ nests.” Treaty 8 member, Susan Auger says they are seeking an injunction to prevent BC Hydro from cutting down trees containing eagle’s nests around the area of the proposed Site C Dam. “There’s approximately 28 eagles nests will be removed but they’re not really removed because they’re just going to cut the trees down.” However, Dave Conway with the Site C project says not only are they aiming to take great care in removing the nests, they aren’t planning on disturbing actives nests and will install up to 38 artificial nesting platforms …

Accuweather.com, August 12, 2015: Diseased trees and drought in Spain, Italy drive up cost of olive oil across Europe

An ongoing drought in southern Europe combined with a disease outbreak is affecting the continent’s olive crop and olive oil prices. The price of a liter of olive oil jumped 10 percent from December to July in the United Kingdom because of a greater demand and a smaller supply, according to The Guardian. The disease problem stems from Xylella fastidiosa, which presents a major risk to the European Union territory, according to a spokesman. “No treatment is currently available to cure diseased plants in the field and, most often, plants that are contaminated remain infected throughout their life or collapse quickly,” said Flavio Fergnani of the European Food Safety Authority (EFSA) …

Windsor, Ontario, Star, August 13, 2015: Point Pelee red mulberry trees on birth control to save species

Point Pelee National Park put some of its trees on birth control this spring to save the endangered red mulberry.
With only 10 genetically pure red mulberry trees left in the park, Nicole Paleczny served as a kind of dating service/fertility specialist for the isolated trees which otherwise might have bred with trees from the wrong side of the forest. “It’s a little weird when people put it that way,” said Paleczny, the species at risk tree recovery project manager. Paleczny thinks of herself more as a bee — up 20 or 30 feet in the air on a scaffold — pollinating tiny flowers with a paintbrush and trying to save a species. There are about 200 red mulberry trees left in Canada and Point Pelee National Park has 10 on the mainland park and seven on Middle Island. The problem is the more plentiful white mulberry, which is native to China, has mixed its genetics with the endangered red mulberry trees to create hybrids. A Georgia geneticist helped the park identify the few remaining true red mulberry trees from the hundreds of hybrids and invasive white mulberry trees …

pottedtree150812Pendleton, Oregon, East Oregonian, August 12, 2015: Helix controversy rooted in trees

A row of trees on a city right-of-way have branched out into a full-blown conflict between Helix residents Trish and Mike Lovejoy and the Helix City Council. After more than a year of debate between the council and the family, the Lovejoys say the city intends to remove the trees and replace them with gravel. Within a year or two of moving from Lebanon to Helix in 2009, the Lovejoys started planting trees in front of their property at 115 Main St. to provide some shade and beautification. Although the trees were planted on city property, the Lovejoys said they didn’t receive any complaints from the city until they sent a letter to the city offering to plant some more trees on Concord Street in April 2014. Writing on behalf of the council, city recorder Carrie Bennett responded that the city had previously tried to plant trees on Concord Street only to see them die and wanted to avoid planting more trees in fear of damaging the nearby sidewalk. Using the same logic, Bennett wrote that the city council was giving the Lovejoys the option of either removing the trees that had already been planted or have the trees forcibly removed for them by the city …

Lynchburg, Virginia, News-Advance, August 12, 2015: Readers have questions about privacy trees

Eastern white pine was once the preferred tree for landscapes where a privacy screen or windbreak was needed. Its role was taken over by Leyland cypress and emerald green arborvitae in recent years, and now they are in trouble. When large branches on older Leyland cypress trees turn brown the culprit likely is a disease called seiridium canker. Controlling it involves cultural practices such as mulching, watering and pruning out the dead and dying branches. Browning branchlets in the interior of these evergreens is normal as they age …

elm150812Saskatoon, Saskatchewan, August 11, 2015: No more trees test positive for Dutch elm disease

A case of Dutch elm disease in the city’s Queen Elizabeth neighborhood appears to be an isolated case after nine trees in the vicinity tested negative for the wilting disease. “We’re pretty lucky,” said Michelle Chartier, the city’s superintendent of forestry and pest management. “That was kind of a relief to have no more positive tests come back.” The city’s first case of Dutch elm disease was identified in the southeast neighborhood of Queen Elizabeth late last month. The tree was removed and buried in the landfill within 48 hours of testing positive and city staff have spent the last three weeks taking samples of elm trees within one kilometer of the infected specimen. All have come back negative …

Batavia, New York, The Daily News, August 12, 2015: City resident questions why utility is mangling Batavia’s trees

What’s up with the way National Grid seems to be mangling city trees, John Roach wonders. He told City Council that a lot of people are complaining about the way the utility company is hacking away at trees, leaving unsightly leftovers on either side of utility wires. “What went wrong with National Grid,” he said during council’s Monday meeting at City Hall. “They’re butchering trees.” City Manager Jason Molino wasn’t sure what has changed. He just spoke with National Grid Monday and claimed a “good cooperative relationship” with the company. National Grid contracts out for tree trimming and doesn’t do the work itself, he said. It’s important to clear some areas of trees because they can be a top reason for power outages and downed wires during storms …

Lincoln, Rhode Island, Valley Breeze, August 11, 2015: Fruit Hill friends press town officials on trees

Over the past five years, 17 trees have disappeared within a five-house radius on Brightwood Avenue, say those who live there. What was once a tree-lined neighborhood when they moved in 15 years ago has lost much of its cover, say three neighborhood residents, and they believe the loss of the green canopy is impacting home values and quality of life. Kathryn Priestley, Rachel Moran and Jeanne Maggiacomo say they want to be part of the solution in bringing back the trees that attracted them to buying homes in this neighborhood. They said they want to be advocates for trees in much the same way as resident Roland Mergener was before he died four years ago, not only bringing trees back to Fruit Hill, but across town. The tipping point for these three came in early July when a neighbor had a healthy 75-year-old tree chopped down near the edge of her property. From what they understood, no healthy street trees are supposed to be removed without the approval of Tree Warden Faye Amsden, said the women …

chestnut150811Worcester, Massachusetts, Telegram & Gazette, August 10, 2015: Westborough chestnut trees now part of forest revival

Tall, graceful American chestnuts may have been the most versatile tree in America before 1904 when blight descended on them, killing most. In 1904, one in four hardwood trees were American chestnuts. By 1940, most mature chestnuts, nearly 4 billion, were dead. The majestic trees were not only forest cover and food for animals, they were also the source of fine hardwood for furniture, beams for barns, siding for houses, telephone poles and tannin for leather tanning. The blight came from Japanese chestnut nursery stock which was imported and sold throughout the eastern United States. Blight infected trees were first found on the grounds of the New York Zoological Gardens by a forester for the Bronx Zoo. It soon spread throughout the tree’s natural growing area from Maine to Florida and as far west as Ohio. There were a handful of surviving large trees and shoots continue to grow, but they don’t survive. Once they begin to mature, the blight kills them. Those that survived, along with dogged scientific work, may provide the source of the rebirth of those trees. Leading the effort for the past 32 years is the American Chestnut Foundation. Partnering with the state Division of Fisheries and Wildlife and many other organizations, it is hoping to turn back time and return those majestic trees to the forests …

Orlando, Florida, WFTV, August 10, 2015: Apopka man wants city to replace orange trees after water line breaks

An Apopka man said a giant crater in his yard was caused by a broken municipal water line. Orange grower Stewart Bronson said the busted city water pipe has created a lake in his backyard. “There is quite a bit of damage. We don’t know how much but, you know, it’s bad, very, bad,” Bronson said. He said the pipe broke Tuesday but went undetected for hours, letting water gush from the pipe overnight, flooding his property. The damage is so bad that he expects dozens of his orange trees to die. “We have got quite an investment in those trees and not only have we lost the investment in the trees, the fruit crop, but also what that tree could bring down the road,” Bronson said …

hottree150811Albany, New York, Democrat-Herald, August 10, 2015: A hot time for trees

John Dinges has been in the landscaping business for 44 years, so he’s seen good and bad summers when it comes to rainfall levels and the effect on trees and shrubs. It goes without saying that this is undoubtedly one of the bad summers. Dinges said nature is dealing with the lack of moisture in its own way. In some cases, adding extra seeds and in others, shucking leaves and storing more nutrients in the trunk of the trees to insure survival. “If trees and shrubs are irrigated properly, they are experiencing little change,” Dinges said. “But if they aren’t watered, a lot of stuff will die this year especially if they are already stressed from other things such as insects or have had their roots damaged in some way.” Dinges said species that are native to the mid-valley, such as Douglas fir, “will probably come out the best because they have been here a long time and have adapted to the region. The Douglas firs should be fine.” Dinges said one of nature’s ways of dealing with unusual weather is to add seeds to increase repopulation opportunities. “They are seeding up heavily already,” Dinges said …

Pittsburgh, Pennsylvania Post Gazette, August 10, 2015: Destructive moth damaging cherry trees in Allegheny National Forest

A tiny moth is munching on Pennsylvania’s most commercially valuable tree, the black cherry, turning large swaths of the Allegheny National Forest brown and eating into future timber sale profits. The cherry scallop shell moth, an insect pest native to Pennsylvania and the eastern United States, has defoliated cherry trees on more than 17,000 acres in the Allegheny National Forest and a total of 56,000 acres in the public and private forests around the national forest in the northwestern corner of the state, according to a recent aerial survey by the Pennsylvania Bureau of Forestry. “This is the first time in more than 20 years that we’ve experienced an outbreak,” said Andrea Hille, a silviculturist for the national forest, in a U.S. Forest Service news release last week. While a moth infestation, even one that lasts for multiple years, rarely kills black cherry, she said some decline in tree growth and overall health of the black cherry trees is likely …

Lompoc, California, Record, August 11, 2015: Watering trees is still important

All the optimistic predictions of a rainy winter do not help with the drought yet. Nice warm weather only makes the garden even drier. Many of us have let our lawns dry out, maybe with plans to replace them later. Some have decided to replace lawn with artificial turf, hardscape or other landscape features. The problem with this is that trees and other large plants that have dispersed their roots under the lawns are thirsty for the volumes of water that they had gotten while the lawns were well-watered. They can survive longer than lawn does without watering and will adapt to less water when they do get it, but they can not do without water completely. It seems silly to water artificial turf or new decking, but it is sometimes necessary, especially for thirsty trees like willow, ash, elm and redwood. This is why some artificial lawns are outfitted with the original irrigation systems of the lawns that they replaced. Drought tolerant tree, like certain oaks and most eucalypti, are more adaptable. Of course, those that were originally watered generously are greedier. Those that got only minimal watering may not notice if they get none at all. Regardless of their requirements, they all can be watered less frequently than lawns were, but should be watered generously when they do get watered. Generous but infrequent watering soaks into the ground better to satisfy deep roots. It is actually what most trees prefer. Lawn needs frequent watering only because the roots are so shallow. Generous but infrequent watering uses less water not only because less evaporates from the surface of the soil, but also because less water gets used …

firefighter150810Miami, Florida, Herald, August 9, 2015: Falling tree kills Forest Service firefighter battling Tahoe-area blaze

A 21-year-old U.S. Forest Service firefighter from Shingle Springs, Calif., was killed Saturday after being struck by a falling tree as crews were mounting an assault on a small wildfire near Lake Tahoe, authorities said Sunday. Michael Hallenbeck died while suppressing a wildfire just south of Echo Summit in El Dorado County. Hallenbeck was struck by a tree at about 5:30 p.m. during the initial attack on a small blaze dubbed the Sierra fire. Efforts to resuscitate him were not successful. “Our hearts go out to the family, friends and fellow crew members of this brave firefighter,” said USFS Pacific Southwest Regional Forester Randy Moore. “The loss of any member of our Forest Service family is a tragedy.” Hallenbeck’s parents, Toni and Kirby Hallenbeck, said in a statement that their son was an avid sportsman who loved the outdoors. He was a snowboarder and hiker and played football, basketball, soccer, tennis, golf and ice hockey. Before joining the Forest Service, he worked two seasons at the Sierra at Tahoe Resort …

Helena, Montana, Independent Record, August 9, 2015: Environmentalists sue over tree-cutting plan in beetle-killed forest

Two environmental groups are suing the Forest Service to stop parts of a nine-year effort to restore beetle-damaged forest at the headwaters of the Clark Fork River. The Alliance for the Wild Rockies and Native Ecosystems Council sued the Beaverhead-Deerlodge National Forest recently in Missoula federal court to stop tree-cutting on approximately 40,000 acres of forest east of Deer Lodge. Electric Peak and Champion Pass are to the east of the project area. The Forest Service plan to cut the trees is part of a restoration effort that began in 2006. That’s when the Forest Stewardship Program — made up of eight entities including the Montana Department of Fish, Wildlife and Parks; Powell County commissioners; and Trout Unlimited — approached the Forest Service about the idea of working together to improve the banks of the Clark Fork River. Pintler District ranger Charlene Bucha said she could not talk about the lawsuit, but she could talk about the restoration project. Bucha said the Forest Stewardship Program contacted the Forest Service because the group was already doing work to restore the lower portion of the Clark Fork River. But that would do little good if the headwaters were not improved, too …

branch150810Scranton, Pennsylvania, Times Tribune, August 10, 2015: Lack of manpower, funds keep dangerous trees standing in Scranton

A dead tree that casts shadows on Bonnie Gayda’s Pine Street home in Scranton was marked as a danger and set for removal a year ago. But since then, nothing has been done, and Mrs. Gayda is worried not only that it might hurt someone, but that the insects found inside could infest nearby healthy trees or worse, her home. “If it were my tree, I would have cut it down, and I would have absorbed the cost if it were in front of my property,” the Hill Section resident said of the tree rooted in the lawn adjacent to her own. “But that’s not the case.” Since he became the city’s forester in 2002, Tony Santoli has overseen the removal of 2,200 dead, diseased or dangerous trees from Scranton’s streets. About 1,000 more need an arborist’s care with 400 slated for removal and 600 in need of trimming, he said. He’s marked the ones that must go down with orange dots, and those that need trimming have orange rings around them. Manpower and funding remain the biggest roadblocks for tending to Scranton’s tree population. “There’s so much work to be done,” said Mr. Santoli, a retired Department of Conservation and Natural Resources district forester of nearly 40 years. “You know the old saying, you have to play with the cards you’re dealt …”

Richmond, Virginia, Times-Dispatch, August 9, 2015: VDOT tree-limb policy isn’t cut and dried

VDOT’s rules about branch cutting are, let us say, nuanced. Below 20 feet, everything gets the chop — alive, dead, causing no problem whatsoever, it doesn’t matter. Above 20 feet, dead branches get trimmed, but live branches are mostly in the clear, as far as VDOT is concerned, said spokeswoman Marshal Herman.  Exceptions can be made for branches above 20 feet if they are obstructing drivers’ view of the road, restrict clearance for tall vehicles or cause cold spots …

Fort Smith, Arkansas, Southwest Times Record, August 10, 2015: Letter: Utility company cuts trees, issues threat

My great-great-grandfather homesteaded this land before the Civil War. I have the original homestead deed signed by President James Buchanan on March 1, 1860. Roughly 40 years ago, someone bought the small parcel directly to the west and built a house. The electric company ran our new neighbor’s house service line across our corner rather than setting a pole a few feet to the west and missing our land completely. About 15 years ago, I put my home in here, and now here comes Arkansas Valley Electric in 2015 and cuts 45-year-old trees out of my front yard because they are in the right-of-way of the little house’s service lines we kindly let them run across our corner 40 years ago. This is an abominable abuse of power that subverts the intent of the legislation that allows the electric company to maintain the right-of-way …

dangertreelaw150807Danbury, Connecticut, News Times, August 6, 2015: Dangerous trees could cost New Milford homeowners $250 a day

A tree at risk of falling on a street or sidewalk could cost town homeowners $250 a day if it’s not taken down.  Tree Warden Carlos Caridad said he plans to propose a hazardous tree ordinance to the Town Council on Monday night. The ordinance would require property owners to take down trees deemed a danger to town rights-of-way. Caridad recommended a $250 fine per day with 8 percent interest from the date a violation notice has been delivered to the property owner until the tree is removed. However, five council members opposed that penalty when the issue was discussed at a meeting last month. “I have a problem with the penalty clause,” Councilman Joe Failla said. “I agree it’s fair to charge someone if the town has to come in and take a tree down. But not to fine them until they act …”

Detroit, Michigan, Free Press, August 6, 2015: DTE Energy backs off from cutting trees in Royal Oak

Paul Bunyan backed down. Three days after officials at a Royal Oak City Commission meeting castigated DTE Energy for planning to cut down too many trees in city easements — and two days after a Free Press story gave voice to city leaders’ complaints — the utility giant was using dark paint Thursday to cover the white Xes sprayed on trees it said were mistakenly targeted for removal. “They’re going to start the process over with us,” Royal Oak Mayor Jim Ellison said Thursday. In a letter to the city, DTE Energy Vice President Heather Rivard apologized for one of the utility’s contractor’s failure to follow the proper procedures in communicating with residents before trimming or removing trees. She indicated the contractor would not be doing future work for DTE. “It was all a lack of communication,” Ellison said …

clocktree150807Greensburg, Indiana, Daily News, August 5, 2015: Courthouse assessment examines tree health, structural needs

A comprehensive structural assessment of the Decatur County Courthouse was conducted Tuesday in an effort to examine maintenance needs of the building and the health of the famous tower tree, county government officials said. The study is divided into multiple phases, which will include firsthand looks at the tree growing out of the clock tower, as well as examinations of the oldest portions of the building and parts that were renovated in the mid-1990s, Decatur County Board of Commissioners President John Richards said. The goal is to head-off any potential maintenance issues, particularly any requiring immediate attention, while ensuring the tree jutting from atop the courthouse – long the symbol of Decatur County and the City of Greensburg – stays healthy …

Saskatoon, Saskatchewan, The Star Phoenix, August 6, 2015: When my tree falls, I will definitely hear it

I’m losing an old friend, and I guess you could say that the sadness is bittersweet. Or maybe tart but juicy. The old friend is the apple tree in the backyard. I don’t know how old it is, but it’s been there longer than we’ve owned the house, more than 20 years. Things seemed fine until this spring, when the tree suddenly wasn’t itself. Leaves came out, then died on dying branches. The blossoms gave way to apples, but much fewer than normal. Many of them started to grow, then stopped. The ones left are now falling off. There will be a kind of woody thump as another despairing apple gives up and jumps. I know, I know. An apple tree dies every six seconds (a statistic I clearly just made up). But this isn’t just an apple tree. It’s the best apple tree ever …

whacktree150807Seattle, Washington, KOMO-TV, August 6, 2015: Tree-sitter vows to stop developer from cutting down an old Douglas Fir

Perched nearly 60-feet high and sitting comfortably in a hammock, you can see her long hair through the branches. Then you make-out her face. And she smiles when she says, “I’m not going to let them cut this tree down.” Kimberly Cisneros climbed the giant Douglas Fir that sits on private property next to her home when she saw a construction crew preparing to fire up the chainsaws. She began her protest Tuesday morning and has set a goal. “I’m going for four days and we’ll see what happens,” she vowed from her perch. “A lot of people are saying, ‘Stay up the tree for me. Stay up the tree for the trees. Stay up in the tree because it’s important …’ “

view150806Torrance, California, Daily Breeze, August 5, 2015: Did ocean view dispute prompt destruction of couple’s trees in Rancho Palos Verdes?

June and Derek Treherne were nearing the end of a month-long vacation in Washington state when they got an email from a neighbor back home in Rancho Palos Verdes — someone had cut down six trees in their backyard overlooking the Agua Amarga Reserve and the Pacific Ocean. “I just couldn’t believe it,” said June Treherne, 71. “In 32 years, we’ve never had anyone trespass on the property.” The couple came home a few days early from their trip last week to survey the damage firsthand. The severed, once-green limbs had turned a rusty brown. They suspect the incident took place about July 15, though they are unaware of any witnesses. “We were very upset that anybody could be arrogant enough to do this,” said June. The couple did not identify a suspect, but two years ago they were involved in mediation with their next-door neighbor over view obstruction from the very trees that went down. “The neighbors we went through mediation with are the only ones who would benefit from this,” June said …

Longmont, Colorado, Daily Camera, August 5, 2015: Longmont Council falsely waives $153,000 in fees for mall trees

Longmont City staff have determined that City Council cannot waive roughly $153,000 in fees assessed to the developers of the Village at the Peaks mall for trees they cut down or relocated. Allen Ginsborg, managing director and principal at NewMark Merrill Mountain States, went before the council Tuesday night during the public invited to be heard portion of the regular council meeting to ask for a waiver of the fees. Steve Ward, owner of SJ Ward Landscaping, said he is handling landscaping for the project and that of the 235 trees on the mall property, they were able to save and relocate 182 of them. Additionally, Ward said, the company added 559 trees to the property for a total of 741 trees, more than three times the original number. Ward asked council to reexamine the provision in city code requiring developers to pay for destroyed trees and Ginsborg asked council to waive the $153,000 in fees. Councilwoman Bonnie Finley said she wanted staff to bring back changes to the provision. “The tree issue seems really backward to me, penalizing people for planting more trees than they cut down, so I would like to direct staff to bring back an ordinance that is not stupid …”

fire150806Annapolis, Maryland, Capital Gazette, August 5, 2015: Officials: Watering Christmas tree daily could have changed Annapolis mansion fire outcome

If the 15-foot Christmas tree had been watered continuously instead of weekly, as officials believed it was in the home of Don and Sandra Pyle, the family might have been able to escape the fire “If the tree would have been watered continuously, they could have had seven minutes instead of 30 seconds,” said David Cheplak, a spokesman with the Bureau of Alcohol, Tobacco, Firearms and Explosives. A fire caused by an electrical outlet plugged into the family’s Christmas tree has been determined to be the cause of the fire that killed six people, including four children. As many as 15 strands of Christmas lights were plugged into the power strip, which was plugged into the floor outlet. While a continuous draw of Christmas lights over six weeks led to the electrical outlet failure, ATF officials believe if the tree had been watered more regularly it would have prevented the immediate damage …

Atlanta, Georgia, WXIA-TV, August 6, 2015: Developer pays ‘maximum’ fine to Atlanta for cutting down trees illegally

The City of Atlanta has imposed “the maximum fine allowed by law” against a developer who cut down five, large, historic hardwood trees from two, side-by-side vacant, residential lots; the developer did not obtain tree-removal permits. “This is an especially egregious violation,” the Commissioner of Planning and Community Development, Tim Keane, told 11Alive News Wednesday. Keane said the developer, Atlanta Intown Developers, must pay a fine of $11,400.13, “the maximum fine allowed by law. They were very large, old trees. Taking down these beautiful trees was shocking.” Keane said Atlanta Intown Developers accepted full responsibility for cutting down the trees without permits, and will pay the fine without appeal …

Salem, Oregon, Weekly, August 5, 2015: Editorial – Yes, we need a tree commission

The Salem City Council needs to establish an Urban Tree Commission, as recommended by the Shade Tree Citizens Advisory Committee. In the past several years there have been tree removals that remain controversial. How does the city of Salem decide which trees remain standing and which may be cut? Are there criteria to follow? An Urban Tree Commission would replace the Shade Tree Advisory Committee., and would establish criteria for tree removal and determine a process for notifications and appeals. It would have the authority over city-owned trees except for trees in the way of public works projects. It would also hear permit appeals, variance applications, and Heritage Tree nominations. Its seven unpaid members would be appointed by the City Council. To be effective this commission needs to have the authority to make final decisions about tree removal and preservation …

ex150805Macomb, Michigan, Daily News, August 4, 2015: Royal Oak wants to organize fight against DTE tree removal practices

Royal Oak city officials want the city attorney to determine whether there is any legal action the city can take against DTE Energy over the power company’s tree removal practices. “Quite a few communities have filed lawsuits against electrical companies for this reason,” City Attorney Mark Liss said. “I’m looking into which ones have won.” Liss said he is also following lawsuits some Bloomfield Hills residents filed last year against DTE over its aggressive tree trimming and removal practices there. Royal Oak also plans to send a letter to the Michigan Public Services Commission which oversees DTE and other utility companies. The MPSC two years ago ordered DTE to reduce its number of power outages. Further, Royal Oak may seek to join with other communities frustrated over DTE’s tree practices in seeking relief from the MPSC …

Detroit, Michigan, WXYZ-TV, August 4, 2015: DTE sets record straight on why trees were marked for cutting in Royal Oak

In a Royal Oak neighborhood, trees are littered with white Xs and its freaked residents out. You see, a contractor for DTE Energy apparently went overboard, marking the trees to be cut down, without talking to people first. It had city leaders crying foul, and DTE heading to the 7 Investigators to set the record straight. “We had an individual contractor out planning the work and he did not follow the process we prescribed,” says Heather Rivard with DTE. The process involves knocking on homeowners doors to seek permission to cut a tree that threatens power lines. Multiple attempts are made to make that contact should a homeowner not be home. In this case, that contractor didn’t follow the rules and he is now off the job …

cut150805Seattle, Washington, KOMO-TV, August 4, 2015: Trees toppled without proper permits in ‘Tree City USA’

At least 19 Douglas fir and other trees were cut down without proper permits in Lacey, a city recognized for excellence in urban forestry, officials said Tuesday. A developer working on the city’s new downtown project had permits approved for a tenant improvement plan, which included landscaping, said Sarah Schelling, a city planner. The builder believed that meant it had the green light for tree removal, which requires an additional permit and approval. “It’s rare. We don’t see cases like this type of land clearing too often,” Schelling said. “They recognize their error. They’re working with the city to make it right.” Kirkland-based MJR Development has been working to redevelop five buildings in the Woodland Square Loop area as part of a master plan to build a plaza, restaurant space, and more, said Mark Lahaie, a partner at the company. Work at the site has been halted until a city forester can survey the tree removal and work on plans to correct it, if necessary …

Hartford, Connecticut, WFSB-TV, August 4, 2015: Fallen tree in Mystic kills man on drive to work

Flanders Road in Mystic was closed on Tuesday following a deadly crash that involved a fallen tree, according to police. Officers said it happened near Route 1, but that road remains open. The crash happened around 6 a.m. The victim, a 51-year-old Ledyard man, was on his way to work when the tree fell on the passenger portion of his Jeep, according to police …

Ardmore, Pennsylvania, Main Line Times, August 4, 2015: Radnor neighbors upset that developer cut down tall pine trees at old Villa Strafford

Residents whose homes abut a new townhouse development at 115 Strafford Road are irate that developer Bo Erixxon, who represents The Benson Companies Builders, cut down six 45-foot tall white pine trees that they believed would be preserved under an agreement they had reached with the builder. Farm Road resident Leslie Morgan said that she and other residents were not notified before Erixxon went before the Radnor Shade Tree Commission on July 22 to get permission to remove the pine trees. Further, she said, she warned township officials in May that the trees were in danger. She told them she’d spoken to the construction manager who told her that he wanted to take down the trees and that one of the new residents of a townhome didn’t want the trees there. Township officials assured Morgan that the trees would be preserved …

California150804Sci-Tech Today, August 3, 2015: Amid California drought, fears rise of trees dying, falling

As Californians and the communities they live in cut back water use and let lawns turn brown, arborists and state officials are worrying about a potentially dangerous ripple effect: City trees going neglected and becoming diseased or even collapsing. With cities ordered to reduce water use by 25 percent during the state’s four-year drought, many residents are turning off sprinklers — not realizing that trees can be permanently damaged by a sudden reduction in the amount of water they receive. “You don’t want to be cutting back the water to the trees,” said Ruben Green, an arborist with Evergreen Arborist Consultants in Los Angeles. “The tree can’t adjust.” Across the state, 12 million trees died over the past year due to lack of water, according to the U.S. Forest Service. While the bulk of those deaths occurred outside urban areas, conservationists and officials are now focusing on cities, where mandated water reductions are becoming visible in drying limbs and scorched leaves …

Lompoc, California, Record, August 4, 2015: Some trees are all bark

Flowers provide color and texture. So does foliage. What is less often considered is that the bark of many trees and large shrubbery can be aesthetically appealing as well. Bark is usually thought of merely as something to cover up the trunks and limbs of the plants that provide all the colorful and textural flowers and foliage. Coral bark Japanese maple and red twig dogwood (and yellow cultivars) turn color as they defoliate for winter. However, the color is limited to the twigs and smaller stems. Red twig dogwood often gets cut back at the end of winter so that it produces more twigs for the following winter. Mature stems and trunks are not as interesting. Palms and yuccas do not actually have bark, yet giant yucca trunks are weirdly sculptural. Mexican fan palm can get “shaven” to expose lean trunks with a finely textured exterior, but are more often adorned with the intricately patterned thatch of old petiole bases (leaf stalks). Windmill palm is uniquely shaggy with coarse fiber …

notice150804Greenfield, Massachusetts, Recorder, August 3, 2015: On the chopping block: Greenfield trees up for Thursday hearing

At least 29 more trees are about to be removed from Greenfield streets, because they are sick, old or have become hazards. Members of the public will have another opportunity to tell government what they think about the removal of trees on Sanderson, Riddell, Federal, Davis, Silver, Shattuck, Allan, Bowles, Cypress, Cooke, East Cleveland and Haywood streets, as well as Harrison and Woodleigh avenues and Bernardston Road at a public hearing at 6 p.m. Thursday in Town Hall. The town’s tree warden Paul Raskevitz will be there to answer questions and take comments. Five trees will be removed from Woodleigh Avenue and four from Cooke Street. The other streets will have one or two removed. Over the past several months, residents have expressed concern about “an aggressive attempt” by the town’s Department of Public Works to remove trees in and around the downtown area. Raskevitz said removal in those areas and on residential streets has been necessary for public safety. “I’ve looked at this next group of trees and they are all in sad, sorry shape,” said DPW Director Donald Ouellette. “We are going to allow residents to voice their concerns, and if there are any strong objections about a particular tree, we’ll take another look …”

Sacramento, California, Capital Public Radio, August 3, 2015: Sacramento launches ‘Mulch Madness’ to save trees

Even though it’s August, there are many streets in Sacramento that look like it’s fall. Parched trees are losing their leaves early as a result of the drought. The city is sponsoring a campaign called Mulch Madness to help save Sacramento’s stressed trees. A group of volunteers spreads shovels wood chips and organic matter at the base of several tall Redwoods and towering Pine trees. Richard Perez is leading the effort for the city’s Parks and Recreation Department. He says mulch improves a tree’s health in many ways. “Number one, it helps with retaining moisture in the trees, also it offers a nutrient balance for the trees,” he says. “As well as root protection, and consequently with the retaining of the moisture we water less. Plus, it offers an aesthetic kind of a quality too.” Kelly Conroy, with the Sacramento Tree Foundation, says the wood chips act as an insulator like wrapping a blanket around an ill patient. “Just like a person, if a tree is feeling very stressed, then it opens them up for more infections, more diseases, more pests which could cause them to die faster,” she says. “And, also spread to other trees possibly …”

Orlando, Florida, WESH-TV, August 3, 2015: Tree trimming company accused of ripping off elderly woman

A tree trimming company is accused of ripping off a number of elderly people in Winter Park, Maitland and Seminole County. The company is accused of charging tens of thousands of dollars for jobs that often weren’t needed and were never even started. Dora, 85, can’t do yard work or maintain the 45-foot tree in her yard; that’s why she agreed to let CAS Tree Service trim it. WESH 2 News asked Dora if the company ever did any work to the tree. “No, they did not,” Dora said. According to Maitland police, Sony Hadden, 34, stole $5,000 from Dora and tried to get nearly $7,000 more for the job one tree expert said should have cost $600 …

theft150803St. Petersburg, Florida, Saintpetersblog.com, August 1, 2015: St. Pete resident allegedly stole neighbor’s trees

If Susan Huff really hired a tree service to remove neighbor Suzanne Bistok’s trees and shrubs, she deserves to get sued. But there’s more to the story than just a lady who doesn’t like trees. Both women live adjacent to one another on 84th Avenue North and 15th Way. There’s no fence between the two homes based on Google Street view. One home, Bistok’s, has loads of trees. The other, Huff’s, doesn’t have very many at all. According to Bistok, Huff either removed or had someone else remove trees from her property while she was away on vacation last year. When she returned, Bistok claims Huff introduced herself and asked Bistok to remove additional trees and shrubs. According to lawsuit documents, Bistok said the trees and shrubs were not encroaching onto Huff’s property and that she instead just considered them unsightly. Even though Bistok refused to remove any more greenery from her property, Huff allegedly hired Jarrod Koontz, who is also named in the lawsuit, to remove more trees. Bistok immediately stopped him, but said when she left again for another vacation, she returned to even more missing trees and other foliage …

Gizmodo, August 2, 2015: Greener, not cleaner: How trees can worsen urban air pollution

No one enjoys choking on smog, but are more trees really the answer for polluted city air? It’s not as clear-cut as you might think. Work in which I have been involved considers how air flows in and around city streets, dispersing vehicle emissions on innocent pedestrians and cyclists. If you consider any wall, parked cars, hedges or trees as barriers that cause the natural pattern of air flow to be diverted, then you can see how trees may not always point transport pollutants in the “right” direction. On the extreme side of things, your typical street with avenue trees, can almost lead to a “green” roof effect, when the canopy in full bloom. This can prevent pollutants from escaping the street and air quality can be greatly impacted. In less extreme circumstances, a single tree in a street corner may break the wind flow and lead to pollution dropping into the breathing zone of pedestrians walking by. To cut a long story short, trees can be as detrimental to air quality as a Slipknot concert in your apartment is to noise pollution. It’s all about their location …

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Sidney, Ohio, Daily News, August 2, 2015: August is ‘tree check month’

A stroll in the park. The backyard barbeque. Hiking in the woods. Dusting off the tree swing. Summer outdoor activities offer a prime opportunity to help protect the nation’s hardwoods from a potentially landscape-altering pest, the Asian longhorned beetle (ALB). Residents of Illinois, Massachusetts, Ohio, New Jersey and New York know all too well the devaestation wrought by the ALB. More than 130,000 trees combined have been lost in these states due to this invasive pest. “Early detection is critical to stopping the spread of the ALB,” said Rhonda Santos of the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS). “The good news is that the public plays an important role in our efforts to eradicate the pest. It only takes a few minutes to look for the signs of the ALB.” August is a time of peak emergence for the Asian longhorned beetle, which was first discovered in the U.S. in 1996, likely arriving here unknowingly inside wood packing material from Asia. With no natural predators, it threatens recreational areas, forests, and suburban and urban shade trees. All states are at risk because the beetle attacks 12 genera of trees, including birch, maple and elm …

Proper tree care is important in good landscaping

Augusta, Georgia, Columbia County News-Times, August 3, 2015: Trees provide great benefits to our home landscapes. They provide shade, help retain soils and add aesthetic value. Most homeowners tend to pamper the smaller landscape plants with irrigation, fertilizer and selective pruning, but leave the trees of the landscape alone. It’s important that we take care of our trees properly by providing the same practices. Many things we do for our other plants and turf in the landscape provide benefits to our trees. However, some maintenance practices might unintentionally damage our trees. Improper mulching might do more harm than good for our trees …

San Francisco, California, KQED-TV, July 31, 2015: Too many dead trees: Sierra sawmills face a backlog

Larry Duysen’s family has run Sierra Forest Products in the small town of Terra Bella, just west of the Sierra Nevada, for almost 50 years. His father, Glenn Duysen, founded the company in 1968. At that time, there were seven other sawmills in the region logging trees in the Sequoia National Forest. “But as wood became less available, one by one, they went out of business,” he says. Logging was restricted and the creation of the Giant Sequoia National Monument put large tracts of land off-limits. Now Sierra Forest Products is the only sawmill left in the entire southern Sierra. And it has gone from a two-shift operation to one. But this year, because of wildfires and the drought, Duysen could easily use two shifts. His log deck outside — where the logs are stacked several stories high before being milled — is almost full. It means for the first time in many years, he has to turn customers away …

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Case of the Day – Wednesday, August 26, 2015

ME AND MY SHADOW

Removing covenants can be like herding cats ... which explains why Robby Ricciardello looked for a shortcut.

Removing covenants can be like herding cats … which explains why Robby Ricciardello looked for a shortcut.

We had occasion recently to round up a majority of 55 subdivision owners in order to revoke some 25 year-old restrictive covenants. The rules were pretty harsh – no work vehicles with signage in front of the house, no sheds, no yard signs …

It helped that almost everyone in the subdivision was violating one or more of the covenants. We explained – over a several-month education program – that all it would take is one jerk moving into the neighborhood who wanted to stick it to his neighbor, and we’d all face trial court Armageddon.

We got a majority to sign on, but it was like herding cats, an exhausting effort.  We made our filing deadline by a nose. The whole experience gave us a heightened appreciation for the long suffering neighbor in today’s case.

The case concerns poor Robby Ricciardello. Well, maybe not poor in the fixed asset sense. Robby owned five lots in a subdivision, and he had big plans — plans like build a barn, store bulldozers, hunt, grow mangoes — you know, the kinds of things we all like to do with our lots in the middle of subdivisions.

A man oughta be able to do what he wants with his own property ... right?

          A man oughta be able to do what he wants with his own property … right?

But he had a problem. His deed contained one of those pesky restrictive covenants that restricted the use of the lots to the construction of one-family homes only. Fortunately for Rob, the restrictive covenants provided that they could be amended or terminated by a vote of the owners of six of the subdivision lots.

Robbie hatched a plan, and thus decided to build a barn anyway. He told his neighbor Jim Carroll what he was going to do. Jim panicked, because he knew Rob had five lots and only needed the concurrence of one more owner. So Jim hatched a plan of his own, starting a drive to amend the covenants in order to make them harder to circumvent. Finally, Rob announced he wouldn’t build a barn after all, so Jim abandoned his efforts.

Any sense of relief Jim felt was short-lived, because Rob did an end run on the subdivision owners. He formed his own limited liability company, which he had to buy an additional lot. Rob essentially had a meeting with himself as an owner of five lots and Connecticut Outfielder LLC – of which he himself was the president – being the sixth lot owner. Rob took a nose count, and — mirable dictu — the owners of the minimum six lots were present! The vote was unanimous, unsurprisingly, as Rob agreed with himself to terminate the covenants.

My shadow is duly incorporated ...

              My shadow is duly incorporated …

Pretty slick, Rob. But Jim didn’t think so, and he sued. Connecticut Outfielder protested that it had done nothing wrong. It just agreed to terminate the covenants, something it as an owner had a right to do. Rob and his alter ego LLC moved for summary judgment, pointing out that the restrictive covenants had been terminated. The court disagreed, finding that issues of fact existed, not the least of which being whether Rob had misled James to induce him to abandon trying to amend the covenants, and whether one guy – by controlling six lots himself or through corporate devices – could validly terminate the covenants.

Carroll v. Ricciardello, Not Reported in A.2d, 2007 WL 2080583 (Conn.Super., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

In June 2004, Ricciardello told Carroll he intended to build a barn on one of the six lots he owned. Carroll started talking to the other owners about amending the covenants to, among other things, raise the number of lot owners needed to amend or terminate the covenants. Then Ricciardello told Carroll he had decided not to build the barn, and Carroll abandoned his efforts to get the covenants stiffened.

But Ricciardello, ever the crafty one, formed a Connecticut limited liability company named “Connecticut Outfielder LLC.” The same day it was formed, it bought lot two of the subdivision. Three weeks later, Ricciardello and Connecticut Outfielder — who together owned six lots in the subdivision — executed a “Release of Declaration of Covenants and Restrictions,” that was recorded in the Glastonbury town clerk’s office, which wiped out all of the covenants and restrictions on the books.

covenant150826Ricciardello proceeded to do as he liked with his lots, planting an orchard, hunting and storing construction equipment. Carroll sued, claiming that the release of the covenants was improper, and asked for an injunction. Ricciardello and Connecticut Outfielder answered, counter-claimed and filed for summary judgment. Connecticut Outfielder contended there are no genuine issues of material fact and that Connecticut Outfielder is entitled to judgment as a matter of law for the breach of restrictive covenants count and the counterclaim seeking a declaration judgment that the release of covenants is valid. Connecticut Outfielder’s grounds of the motion are that Carroll testified that Connecticut Outfielder did not breach the covenants, and, the plaintiff did not allege any wrongdoing by Connecticut Outfielder in the operative complaint. Carroll objected that there were genuine material issues of fact.

Held:  Summary judgment was denied. Summary judgment, of course, is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Here, the Court said, genuine issues of material fact exist concerning whether Ricciardello and Connecticut Outfielder breached the covenants and whether the covenants were properly released. Also, an issue existed whether Carroll relied on Ricciardello’s false assurances that he wouldn’t build a barn in deciding to abandon his quest to amend the covenants to block Ricciardello’s plans.

As long as those issues remain, the case must go to trial.

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Case of the Day – Tuesday, August 25, 2015

T.H.E. CAT

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series ...

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series …

Remember T. Hewitt Edward Cat?  His hangout at the jazz joint Casa del Gato? Lalo Schrifin’s cool theme music?

That’s OK if you don’t, because the cat we’re talking about today is anything but the black-clad suave Robert Loggia. More Garfield than cool cat, the Dinuccis’ tabby kept wandering into Mr. Lis’s yard. The Dinuccis — who, face it, didn’t have a great rapport with their neighbor to begin with — didn’t give a hairball about Lis’s complaints.

Finally tired of it all, Mr. Lis trapped the feckless feline and turned it over to the City. The City charged with Dinuccis with an “animal at large” minor misdemeanor.  About this time, old softie Mr. Lis contracted a case of the “guilts.”  He could hardly live with himself if the Dinuccis found themselves doing 30-to-life in some hard-labor gulag.  So he relented, and asked the city law director to dismiss the charges.

Big mistake.  Proving the old adage that no good deed goes unpunished, the Dinuccis promptly sued Lis for malicious prosecution.  

deed150825After the long-suffering neighbor paid a metric ton of legal fees, the trial court threw the case out, and the Court of Appeals agreed.  The Dinuccis’ case suffered from a simple problem: they never denied their cat was free range (how could they?), and that was all the ordinance required.  Because there was probable cause to believe that the peripatetic pussycat had gone feral, there was probable cause to believe ordinance had been violated.  That being the case, there could not be malicious prosecution.

Nevertheless, if it happens again, we’d bet Mr. Lis’ll demand the City Prosecutor throw the book at ‘em — and probably overdose their sweet little kitty with industrial strength catnip. Ingratitude isn’t only unbecoming … often, it’s self-defeating, too.

stray150825Dinucci v. Lis, Slip Copy, 2007 WL 2269740 (Ct.App. Ohio, Aug. 9, 2007).  This dispute between neighbors started over involving the capture and eventual safe release of a house cat. The parties were before this court in an earlier dispute, which involved trespass, property damage, and continuing nuisance claims by the Dinuccis against their next-door neighbor Matthew Lis.  Then the Dinucis had claimed Lis was liable for 1) delays in the construction of their house due to his’ objections, 2) damage to their lawn caused by trespassing, 3) willow tree branches hanging over their property, and 4) creating a nuisance by having the Lis yard look like a construction site for over two years. Out of all of that the Dinuccis won a princely $150 for damage to their lawn, the rest of their claims having been thrown out. The Dinuccis appealed to no avail.

At the same time, it appears that Lis had been complaining since 2004 about Dinuccis’ cat wandering around the Lis homestead.  Lis contacted the North Royalton, Ohio, animal control department.  The City’s animal control officer told the Dinuccis that the city had received complaints from neighbors concerning their cat, and warned them that they would be cited if the problem wasn’t resolved.

It wasn’t, and a few months later, Lis captured the feline  on his property and turned it over to the City. The Dinuccis were charged with a violation of North Royalton Ordinance 618.01, the “Animal At Large” provision. The North Royalton prosecutor met with the parties, at which time Lis agreed with the recommendation that the criminal charge against the Dinuccis be dismissed.  But after the charges were dismissed, the Dinuccis filed a civil lawsuit against Los, alleging malicious prosecution and intentional infliction of emotional distress. The trial court granted Lis’s motion for summary judgment and dismissed the case. Dinuccis appealed.

garfield150825Held:  The case was correctly thrown out. The Court observed that, after all, North Royalton Ordinance 618.01 clearly stated that ‘[n]o person who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, dogs, cats, geese or other fowl or animals shall permit them to run at large upon any public way or upon unenclosed land” and that [t]he running at large of any such animal in or upon any of the places mentioned in this section is prima-facie evidence that it is running at large in violation of this section.” In order to establish the tort of malicious prosecution, the Dinuccis had to prove malice in instituting or continuing the prosecution, a lack of probable cause, and termination of the prosecution in favor of the accused. And here, the Dinuccis couldn’t show a lack of probable cause.

Probable cause does not depend on whether the claimant was guilty of the crime charged, but instead, only on whether Lis had probable cause to believe that the Dinuccis were guilty.  Lis wasn’t bound to have evidence sufficient to insure a conviction, but instead was required only to have evidence sufficient to justify an honest belief of the guilt of the accused. Here, the Court said, the evidence show that both the city and Lis had a reasonable belief that Dinuccis violated North Royalton Ordinance 618.01.

Indeed,  the Dinuccis didn’t deny violating the ordinance either at the trial court level or in their brief. Their cat was captured on Lis’s property. As a result of a reasonable belief that the violation occurred, probable cause to investigate existed. The evidence was sufficient to justify an honest belief of the guilt of the accused.

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Case of the Day – Monday, August 24, 2015

DOING IT ON THE CHEAP

 

Fred Flintstone's boss dictated the hours, methods and conditions of work. Hence, Fred was an employee.

Fred Flintstone’s boss dictated the hours, methods and conditions of work. Hence, Fred was pretty clearly an employee.

Over the next few days, we’re going to talk about independent contractors in the legal sense. With Uber, Lyft and a host of other “gig” companies emerging, all of which save money by calling their workers “independent contactors,” the topic is very timely. The tree business  worries (or should worry) a lot about the status of a worker. A lot of bad things can happen when a worker is misclassified as an independent contractor when he or she is an employee. In the next five days, we’ll try to look at a lot of the pitfalls.

You’d think that determining whether a worker is an employee or independent contractor ought to be pretty cut-and-dried. Fred Flintstone at the Bedrock quarry? Well, he used his employer’s equip ment, he did what he was told, he punched a timeclock … clearly an employee. On the other extreme we have the A-Team. They came to you, brought their own weapons (and usually a homemade armored vehicle or two) and a helicopter. They came to do a job, and then left (usually just a step ahead of the Army authorities). No question, they were independent contractors. Very independent contractors.

They brought their own guns - clearly independent contractors.

     They brought their own gun, transportation, and – in the case of B.A. Caracas – high-class bling.  Clearly, the A-Teamer were independent contractors.

The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some employers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky employer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a never-ending battle against this dodge, and even mandates a test to determine whether your worker is a Fred or a B.A.

There are reasons besides taxation for a principal to try to pound a square employee into a round independent contractor hole. Liability and worker’s compensation are two of those. Over the next few days, we’re going to examine the problem of worker classification as it relates to the arboriculture industry. Today, we’re looking in on a real cheapskate, and how his tightfistedness nearly killed a teenage girl.

Penny-pincher Sulcer had a tenant named Quimby. No, not the Mayor of Springfield, but instead a long-haul trucker. The landlord ignored his tenant’s pleas to trim a dangerous tree, until the tree got in the way of the landlord’s plans. Then he told his tenant — a tree-trimming tyro — to trim it for him, for free, of course.

For some unfathomable reason, Quimby did so.  Unfortunately, in so doing, Quimby dropped a limb in a freak accident that struck his high school senior daughter Leslie’s chest, requiring emergency open heart surgery to fix. She survived (even marrying lucky young Mr. Allen during the pendency of the litigation). Sulcer argued that he wasn’t at fault, because Quimby was really just an independent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.

The trial court bought it, but the Court of Appeals — offended, we hope, that the landlord was getting off scot-free— looked at the issue differently. The question, it properly held, was what Sulcer owed Leslie as a tenant, not as a volunteer worker for her volunteer worker tenant Dad. And clearly, he had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter. Of course, the Court couldn’t help but notice the report of Leslie’s arborist: he said a professional trimming job would have cost ol’ tightwad Sulcer $300 to $500. The Court didn’t say it, but we think it was a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for $500.00.

No, not this Quimby – Leslie Quimby ...

No, not this Quimby – Leslie Quimby …

Allen v. Sulcer, 255 S.W.3d 51 (Tenn.Ct.App., 2007). A landlord told his tenant, Mr. Quimby, to prune large limbs from a tree on the rental property with a chainsaw. The tenant’s 18-year old daughter, Leslie Quimby (now Leslie Allen), was assisting by clearing the limb debris, and suffered an aortic valve rupture and other internal injuries that required emergency open-heart surgery, resulting from the impact of a tree limb that had fallen and ricocheted off the ground, striking her in the chest and chin. At the time of the incident, her father was in an ash tree (about 15 to 20 feet off the ground) in front of his rental house, pruning overgrown limbs with a chainsaw. Ms. Allen was standing in front of the house and assisting her father by clearing the limb debris.

The tenant had previously requested more than once that William E. Sulcer, his landlord who lived 100 yards from the rental house, have the tree pruned. Quimby had voiced his concern that the overgrown limbs, hanging over the house and driveway, would hurt someone. Even though Sulcer had used professional tree services on his farm in the past, he asked Quimby agreed to perform the work because he was tired of the limbs hanging over the house and driveway. Sulcer did not offer to compensate Quimby for his services. Quimby had no training or expertise in pruning or felling trees, or with operating chainsaws, even though he owned one and used it on the limb in question. Sulcer knew Quimby didn’t have experience pruning trees but relied on the fact that Quimby had cut limbs on the property before with no problems. Even so, Quimby had never before trimmed large limbs or climbed into a tree to do so. Other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.

Ms. Allen sued Sulcer, alleging he was negligent as landlord and as the principal of the negligent agent Quimby. She asserted that Sulcer was negligent in instructing her father to undertake such a task, in failing to supervise his activities, and in failing to maintain the leased premises in a safe condition. She argued the negligence of her father should be imputed to Mr. Sulcer under the principles of vicarious liability. Sulcer responded that if there were any relationship between Quimby and himself, it was that of employer and independent contractor. He contended he did not create the alleged dangerous condition and that, if it existed, he had no duty to Ms. Allen because the dangerous condition was known (or should have been known) to her. He argued that, as an employer of an independent contractor, he was not liable for the negligent acts of the contractor, or for injury to the contractor’s helpers.

The trial court found Quimby to be an independent contractor, and it was a well settled principle of law that employers of an independent contractor owe no duty to the employees or “helper” of the independent contractor engaged in an inherently dangerous activity. The trial court granted judgment for the defendant, and Ms. Allen appealed.

tightwad-1-140213Held: The summary judgment for Sulcer was reversed. The Court observed that a successful negligence claim requires the plaintiff to establish a duty of care owed by the defendant to the plaintiff; conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; an injury or loss; causation in fact; and proximate cause. The Court said that although the parties agreed that Quimby acted as an independent contractor on behalf of Sulcer, the facts of the case more directly implicated landlord/tenant law. The trial court had overlooked the fact that Ms. Allen was a tenant of Sulcer and failed to account for the possibility of Sulcer’s negligence as a landlord. Thus, the Court held, the dispositive question was whether Ms. Allen encountered a harm whose foreseeability gave rise to a duty of reasonable care on the part of Mr. Sulcer, the landlord, to protect her from the danger of falling limbs.

This is not amateur hour ... as the penny-pinching landlord found out.

This is not amateur hour … as the penny-pinching landlord found out.

In general, landlords owe a duty of reasonable care to their tenants. When a landlord undertakes to repair or maintain some part of the premises, he owes his tenants a duty to exercise ordinary and reasonable care in seeing the repairs are properly made. In other cases, landlords were held liable for injuries to tenants where they sent unskilled employees to repair units. Here, Sulcer knew that Quimby was unskilled in tree trimming, that he did not want to perform this work, and was afraid of heights. Sulcer didn’t even offer to pay Quimby. He didn’t inquire into safety precautions or any other methods Quimby might use. Sulcer argued he had no duty to Ms. Allen because the danger of falling limbs was open and obvious, and, because the danger was so open and obvious, it was not foreseeable that Quimby would allow her to collect the limbs or be anywhere near the work site. But Tennessee courts have concluded that an open and obvious danger does not automatically result in a finding of no duty and therefore no landowner liability. As in any negligence action, a risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh the burden upon the defendant to engage in alternative conduct that would prevent the harm.

Here, limbs falling from a tree are not so obvious a danger as to relieve Sulcer of his duty to hire a competent tree trimmer. Sulcer created an unreasonable risk of harm when he asked an unskilled tenant to conduct work that is dangerous. While the force of a falling limb is predictable, its trajectory while falling and after striking the ground is not. This unpredictability makes the risk of injury from a falling limb more salient when unskilled hands attempt the task. The alternatives available to Sulcer, the Court said, ranged from discussing pruning methods to offering assistance to hiring a professional tree trimmer, all of which, to varying degrees, would have materially lowered or eliminated the probability of such harm with very little burden to the defendant. The Court found that Sulcer had a duty to select someone who would know how to minimize the risk of trimming such large branches.

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Case of the Day – Friday, August 21, 2015

THAT EQUITY MAY PREVAIL

A barricuda in one of its habitats - the other is a courtroom.

A barracuda in one of its habitats – the other is a courtroom.

Sometimes you really wish you knew the back story on a lawsuit. To merely read the recitation of facts and the application of the law in some cases leaves you wondering – why is this case even in the courtroom?

Today’s case is a perfect example. The Mannings lived in a housing development. Behind their well-manicured lawn lay some scrubby, undeveloped woods. Their neighbors had a back lawn that was about 30 feet deeper, and the Manning family mistakenly thought that their own lawn must be that long, too. So they cleaned and chopped weeds and took down some saplings, and installed a park bench and baseball batting cage.

But it turned out that the land wasn’t theirs. Presently, they got a letter from some limited liability company’s lawyer, telling them to cease and desist forthwith, govern their actions accordingly, and all of that legal mumbo-jumbo. Chastened, the Mannings withdrew to their own boundary.

End of story? Nope. The owner of the land, CUDA Associates, LLC — “CUDA” undoubtedly being short for “barracuda” — sued the Mannings for the grievous harm they obviously had done to its rather decrepit piece of real estate. The ‘Cuda sued for trespass, for intentional and wrongful cutting of timber in violation of Connecticut law, and for “unjust enrichment.”

OK, fo technically, the Mannings did commit a trespass ... but they left the land in better shape than they found it.

OK, so technically, the Mannings did commit a trespass … but they left the land in better shape than they found it.

And exactly who was unjustly enriched?  You have to wonder why CUDA would have sued at all.  After all, there was no damage to the CUDA land. In fact, the Court suggested the Mannings had improved it.  What’s more, the trespass was an honest mistake, and the trespassers withdrew as soon as their attention was called to the error.  We’ll never know the whys.  But the trial court pretty clearly agreed with us that the whole thing was a tempest in a teapot: the judge dryly observed that “[t]he equities in this claim clearly rest with the defendants, and as such must be balanced with the nominal losses that the plaintiff has suffered.”  In other words, the Mannings’ trespass was pretty minor and done honestly enough, and CUDA didn’t really suffer for it.  In fact, it was better off for the trespass, because its property was left in better shape than it would have been in had the Mannings stayed home.  The whole case seems like a monumental waste of the court’s time.

However – and we should all know this by now – litigants are allowed to waste the court’s time, and they do so daily. As maligned as lawyers are, sometimes the fees they charge are the only brakes ever applied to the wacky legal claims their clients want to press in the courtroom. Unfortunately for the Mannings, no cooler heads prevailed in the offices of CUDA’s counsel, so the suit was litigated to judgment.

The court recognized that Connecticut law dictated that damages had to be awarded, even where the trespass was trifling. So it awarded CUDA $1,500, an amount which (we hope) was probably much less than its attorney’s fee. So some justice prevailed in the end, even if it was only found in a lawyer’s pocket.

CUDA Associates, LLC v. Manning, Not Reported in A.2d, 2008 WL 249974 (Conn.Super., Jan. 8, 2008). CUDA Associates owned 3,000 square feet from which the Mannings cleared trees, removed underbrush and in effect extended the back boundary of their property line by approximately 30 feet along the entire easterly line of their backyard. All of the surrounding land owned by CUDA or its successor was undeveloped. The Mannings’ house was located in a developed residential area with housing on both sides of White Avenue, and abutting the plaintiff’s property to the east and south. The Mannings installed a park bench, a baseball practice apparatus and the cutting of certain trees and undergrowth, an intrusion into the CUDA’s property that ended when CUDA wrote to them. The Mannings were operating under a mistaken belief that the property that they had encroached upon was theirs and roughly matched the back property line of their neighbor. This mistaken belief led them to do certain clearing and cutting of trees and underbrush and to use the property for their own benefit. CUDA sued for trespass, removal of timber in violation of statute and unjust enrichment.

CUDA could have erected a sign that warned against trespassing and spouted a lot of legal nonsense, like this one ...

CUDA could have erected a sign that warned against tres-passing and spouted a lot of legal nonsense, like this one …

Held: The Court found that the Mannings commited a trespass upon a portion of CUDA’s property for their own use and benefit, but any loss of use for CUDA was not measurable. The trespass was negligent and not intentional and, therefore, only minimal damages were awarded. As for the cutting of trees, timber or shrubbery in violation of Connecticut General Statute §52-560, while the Mannings did cut trees, CUDA failed to establish the quantity or the value of any of the trees that had been removed. In fact, the Court said, the cutting may have actually improved the overall site appearance for CUDA’s benefit. Nothing more than reasonable and ascertainable value under the statute can be awarded.

As for unjust enrichment, the Court held that the non-permanent intrusion by the Mannings was unintentional.  What’s more, any benefit derived by them from the CUDA land was coincidental to the use of their own backyard property, and was of a de minimis nature. The Court said that equities in this claim clearly rested with the Mannings, and had to be balanced with the nominal losses that the CUDA suffered. The Court awarded CUDA $400 for the common-law trespass, $600 for the timber statute violation, and $500 for unjust enrichment.

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Case of the Day – Thursday, August 20, 2015

ACQUIESCENCE

One big happy family ... until part of the homestead gets sold.

One big happy family … until part of the homestead gets sold.

Lawyers and surveyors are the first to tell you that you should always carefully survey and protect the boundaries of your property. Daily. It’ as important as flossing. And the advice is ignored just as often.

This is especially so when the adjoining property owners are family. If you can’t get along with your kin …

In today’s case, a family farm — handed down from father to son to son — had adjacent farmland parcels. The brothers owning them agreed that a barbed-wire fence they laid — measured off the centerline of a county road — was the boundary between their lands. They measured carefully and marked the fence with fed flags and pennies crimped around the barbed wire, but they didn’t use a surveyor. After all, we’re all family, so who needs to waste money on a third-party?

The problem was that the county road centerline wasn’t accurate. As a result the 60-acre parcel and the 18-acre parcel were off by about a quarter-acre in favor of the bigger piece of land. But no one knew it, and the agreed-upon boundary survived the decay of the fence, the installation of a mobile home and the digging of a well to replace one end of the fence.

It wasn’t until the 18-acre parcel passed out of the family that the buyer discovered — four years after he took possession — that the presumed boundary was off a bit. What’s a quarter acre out in Nebraska farm country? For the buyer, Aaron Sila, it was a lawsuit.

A long-standing rule provides that mutual acquiescence between owners can establish a boundary line where the actual location of the line is unknown. The Nebraska trial court held, however, that the doctrine wouldn’t work in this case, because the line could easily have been calculated by a surveyor using the legal descriptions in the deed. The ruling, of course, begged the question: when exactly would a boundary be unknown if the owners hired a surveyor? Shades of Rumsfeld’s “known unknowns” and the “unknown unknowns,” back in the golden days of the Iraq invasion!

Our orange cake - which is really good - took second place at the County Fair this week ... we mutually acquiesced to the red ribbon, because the first-place coconut and strawberry dump cake had us outclassed.  (We thus have managed to mention our 2nd place baking finish in a tree-and-neighbor law column, a feat some of our critics doubted we could do).

Our orange cake – which is really good – took second place at the County Fair this week.  We mutually acquiesced to the red ribbon, because the first-place coconut-and-strawberry dump cake had us outclassed. (We thus have managed to mention our 2nd place baking finish in a tree-and-neighbor law column, a feat some of our critics doubted we could do).

The Nebraska Supreme Court recognized that the trial court’s impossible standard effectively gutted the mutual acquiescence doctrine, and it reversed the decision. It didn’t matter, the Court said, that owners might be able to fix the actual boundary by hiring lawyers and surveyors. They in fact didn’t know where the line was for sure, and they agreed to what each knew was an approximation. It worked for longer than the 10-year statutory period, the Court found, and that was good enough to establish a new boundary by acquiescence.

Sila v. Saunders, 743 N.W.2d 641, 274 Neb. 809 (2008). This case arose as a boundary dispute between two adjoining farm property owners, Kirk and Aaron. The properties were once part of a single farm owned by Kirk’s grandfather, but the land was divided into three parcels and given to his three sons: Vern, George, and Kirk’s father, Eugene. George got an 18 acre parcel east of a county road. Vern and Eugene were each given adjacent 30-acre parcels to the east of George’s 18 acres.

A year later, Vern died, and his 30 acres were acquired by Eugene. Kirk eventually inherited a 20-acre segment of Eugene’s 60 acres. That segment abutted the disputed 18-acre parcel originally given to George. In the early 60s, George and Eugene established the shared boundary of their properties, “[t]o split the farm up to get a boundary line so [George] knew what he owned and what my dad owned,” according to Kirk’s brother, Elloite. George and Eugene decided not to hire a professional surveyor to mark the boundary, and they mistakenly believed that the middle of the county road represented a section line marking the west boundary of George’s 18 acres. George and Eugene took a 100-foot tape measure and some flags and measured 594 feet east from the middle of the county road. They crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties. After this, George’s crops were farmed on the west side of the boundary, and Eugene planted his crops on the east side of the boundary. An aerial photograph from the time showed a clear demarcation between the two parcels that appeared to be parallel to the county road from which the boundary had been measured.

In 1965, Kirk removed the barbed wire fence on the south end of the property, but placed a water well next to the property line designated by the crimped penny. After the removal of the fence in 1965, the well was understood by George and Eugene to be the south visual marker for the boundary between their properties. George and Eugene farmed their respective lands with the well on the south end and the crimped penny on the north end of the boundary for 21 years. When George died in 1986, Eugene and Elliotte continued to farm Eugene’s 60-acre parcel, and they also farmed George’s land for his widow, but they maintained the crop boundary line according to the well/stump boundary. When Eugene died three years later, Elliotte continued to farm George’s land and the 20 abutting acres inherited by Kirk, and he still considered the well and the tree stump as boundary markers.

Aaron Sila bought the 18 acres from George’s widow in 2001. Four years later, he hired a surveyor, who found that the centerline of the county road along the west side of Aaron’s property did not — as George and Eugene had believed — correspond to the section line. Aaron’s surveyor didn’t notice either a stump or a well as visual markers of a boundary line.

Remember Donald Rumsfeld's "unknown unknows?" The Court said that doctrine didn't limit mutual acquiescence


Remember Donald Rumsfeld’s “unknown unknowns?” The Court said that doctrine didn’t limit mutual acquiescence.

Elliotte hired a surveyor, whose survey showed the disputed area as a trapezoid of about .264 of an acre in issue. The trial court found that Aaron owned the disputed parcel, because mutual acquiescence can only fix a boundary that is otherwise unknown. Since the true location of the boundary was set forth in the legal description and was readily ascertainable through conventional surveying techniques, the court concluded it was “known.” The court also rejected Kirk’s adverse possession claim. Kirk appealed.

Held: The trial court’s decision was reversed. The Nebraska Supreme Court held that under the doctrine of mutual recognition and acquiescence, while a boundary may be fixed in accordance with a survey, when a different boundary is shown to have existed between the parties for the 10-year statutory period, it is that boundary line which is determinative and not that of the original survey. The fact that the true boundary might be “knowable” because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land — but did not — does not preclude the property owners from acquiescing in a boundary that they believe corresponds with the deed’s description.

Here, the two owners knew that the boundary line was merely an approximation of the real boundary. Nevertheless, that fact did not preclude a finding of mutual recognition and acquiescence, so long as the acquiescing parties recognized this approximation as their actual boundary. In order for mutual recognition and acquiescence to operate, there had to be an assent, by words, conduct, or silence, in a line as the boundary.

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