Case of the Day – Thursday, December 5, 2019

IT’S EASIER TO ASK FORGIVENESS THAN PERMISSION

Tom and Jody apparently did not think much of the cottonwoods standing in the very front yard of the house across the street from them. They talked to a tree service (I surmise from the facts of the case), who told them that the cottonwoods stood in the city right-of-way, so they could have them removed regardless of what neighbors Chris and Jeanne may have thought.

That seems rather extreme: a homeowner on one side of the street can cut trees on the other side of the street. And, it turned out, there was a paperwork catch. The City of Anchorage ordinance required that one get a permit to “use” the right-of-way. “Using” the right-of-way includes cutting down a tree.

Tom and Jody did not bother getting a permit. Neither did the tree service they hired. A few months after the fact (probably because neighbors Chris and Jeanne were howling about the missing cottonwoods), the tree service applied for and got an after-the-fact permit. After all, as Admiral Hopper famously said, it’s easier to ask for forgiveness than for permission.

Chris and Jeanne cried foul, arguing that because the tree service did not have permit in hand when it took down the trees, the tree removal constituted timber trespass, and entitled them to treble damages. Their case wasn’t helped when the Anchorage bureaucracy pointed out that the trees were on its right-of-way, not on property controlled by Chris and Jeanne. To add insult to injury, the municipality asserted its right to grant retroactive tree removal permits, and, by the way, told Chris and Jeanne that the tree removal was a good thing, and replacement trees would never be permitted.

An interesting issue was whether Chris and Jeanne even had the right to sue for trees removed from the city right-of-way. Alas, that question was not answered, because the Alaska Supreme Court said the back-dated permit the City issued Tom and Jody was perfectly acceptable.

Rosauer v. Manos, 440 P.3d 145 (Supreme Ct. Alaska, 2019). Chris and Jeanne Rosauer owned a home across the municipal roadway from a home owned by Thomas Manos and Jody Liddicoat. The Municipality of Anchorage owns a right-of-way between the Rosauers’ property and the municipal roadway.

In August 2015 Tom and Jody hired Greatland Tree Service to cut down several cottonwood trees within the municipal right-of-way in front of the Rosauers’ property. The Anchorage Municipal Code requires private citizens to get a permit for the “use” of municipal rights-of-way, including for tree removal. Neither Tom and Jody nor Greatland obtained a permit before the tree removal, but Greatland later obtained a permit after the fact, a few months later.

In April 2016 the Rosauers sued Tom, Jody and Greatland, seeking damages under Alaska’s timber-trespass statute, AS 09.45.730, which provides that a “person who without lawful authority cuts down, girdles, or otherwise injures or removes a tree, timber, or a shrub on the land of another person or on the street or highway in front of a person’s house… is liable to the owner of that land.”

The next month Chris asked the Municipality to invalidate the permit issued to Greatland. The Municipality denied Rosauer’s request, explaining in a permit-inspection report that the trees had been located on a “right of way and not on private property” and that their removal benefitted the Municipality by “improv[ing] maintenance, snow removal, and access to the drainage ditch.” The report stated that the Municipality “will not permit the replacement of the trees in the same location.”

The two issues arising under the statute were whether the retroactive permit negated the requirement that removal be “without lawful authority” and whether the Rosauers could bring a claim under the statute even though they did not own the land from which the trees were removed.

The defendants argued that, because the statute does not specify when authority must be obtained, the retroactive permit constituted “lawful authority.” The Rosauers countered that while the statute is silent on timing, the Anchorage Municipal Code requires that a permit be obtained before removing trees from a right-of-way. The defendant replied that the code allows the Municipality to waive any breach of the terms or conditions of a permit, and that such terms and conditions include the requirement for obtaining a permit before tree removal.

Cottonwoods – fast-growing… and as messy as a 3-year old...

Tom and Jody also argued that the Rosauers lacked standing to bring a claim under AS 09.45.730 because they did not own the land from which the trees were removed. Tom and Jody interpreted the condition “liable to the owner of that land” to grant a cause of action only to the owners of land from which trees are removed. The Rosauers responded that Tom and Jody seemed to ignore the second condition — “or on the street or highway in front of a person’s house” — and that the term “owner of that land” also applies to homeowners whose property abuts a street or highway from which trees are removed, thus granting them a cause of action.

The trial court granted summary judgment to the defendants, holding that to “prevail under AS 09.45.730 Plaintiffs are required to show Defendants cut down a tree on the street in front of their house without lawful authority.” The court concluded that the retroactive permit conferred lawful authority after the fact but before the lawsuit, and that was all that was required.

The Rosauers appealed to the Alaska Supreme Court.

Held: Forgiveness is as good as permission.

Under AS 09.45.730, Alaska’s timber-trespass statute, a landowner may recover treble damages from a person who without lawful authority cuts down a tree on the land of another person or on the street or highway in front of a person’s house.

At the same time, municipalities may broadly delegate powers to their agencies or officers. Delegation of power promotes efficient government. Here, the Court said, Anchorage Municipal Code 24.30.120(A) broadly entrusts decisions regarding the safe and efficient use of public spaces to the Department of Development Services. Authority to grant retroactive permits, with terms and conditions necessary to protect the public interest, is consistent with such a policy.

The Court said Tom and Jody were correct that AS 09.45.730 does not specify when lawful authority must be obtained, a point which the Rosauers conceded. The statutory provision granting the Department permitting authority makes clear that permitting decisions involve agency expertise on public safety issues. This is clearly illustrated by the permit at issue in this case.

The subsequent permit-inspection report — created in response to the Rosauers’ request that the permit be invalidated — refuted any suggestion that it is unreasonable to interpret the municipal code provision authorizing waiver of permit terms and conditions to include waiver of the prior authorization requirement.

Thus, the Court ruled, the retroactive permit conferred lawful authority for the tree removal. Because the Municipality’s retroactive permit deprived the Rosauers of the requirement under AS 09.45.730 that removal be “without lawful authority,” the Court said the issue of whether the Rosauers had standing to sue need not be decided.

– Tom Root

TNLBGray140407

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