Probability of success transplanting large blue spruce?

[John Paul Sanborn]

JPS, yes prosecuting for trespass has yielded more reasonable settlements than going after tree value, esp. given that "stumpage" wording.

I've read of a few malicious trespass and encroachment cases out east that went in the favor of the plaintiff, appeal seams to always be the sticking point.

A friend of mine got stuck in a like case where he stated that the customer marked out the area to clear of mostly invasive underbrush. It was relatively small area and i have done similar projects with him, clearing buckthorn, honeysuckle and the like. He was sued for encroachment and the replacement value report by the plaintiffs landscaper was ruled fair, and he was judged liable for $46k. It was settled for $12 k. Of course the plaintiffs never put any money towards restoration.

He had a 2 opinions written that stated he had improved the property, and had offered to plant native shrubs to restore prior to going to court. His client left him flapping in the breeze.

 

[Lucy]

Lucy, if this is your operative understanding, I recommend that you get an attorney who can interpret statutes accurately.

treeseer - for purposes of damage assessment and reparations under NYS statute, the term lands includes "any underwood, tree or timber". As defined in the statute “Stumpage value shall mean the current market value of a tree as it stands prior to the time of sale, cutting, or removal. Stumpage value shall be determined by one or more of the following methods: the sale price of the tree in an arm’s-length sale, a review of solicited bids, the stumpage price report prepared by the department of environmental conservation, comparison with like sales on trees on state or private lands, or other appropriate means to assure that a fair market value is established within an acceptable range based on the appropriate geographic area."

If I had to put on my legal cap, I'd say attorneys don't interpret statutes, judges do. An attorney simply determines which tools in the toolbox are best suited for the job at hand when an action against a party in violation is warranted. There is no question we have been harmed and can bring action for restoration against the neighbor who admits culpability. As mentioned earlier, we have local counsel to advise under which of the appropriate laws in our state it is best to proceed under and if our action should be criminal (possible class D felony) or civil in nature. It is important to understand the NY Timber Trespass Laws include a.) NY Real Property Actions and Proceedings Law §861. Action for cutting, removing, injuring or destroying trees or timber and damaging lands thereon, and b.) NY Environmental Conservation Law §9-0303. Restrictions on use of state lands; §9-1501. Removal of trees; §71-0703. Penalties and c.) NY Environmental Conservation Law and d.) NY Public Lands Law §9. Penalty for trespass and e.) NY Penal Law §155.05. Larceny defined; §60.27. Restitution and reparation. Despite the rather dated verbiage and no market value option compared to the NC statute, I believe the NYS Laws were updated in 2003 and 2008. See Appendix B in the Legislative Briefing HERE for a quick summary if you are so inclined.

Like most states apparently, the preferred legal course in NY depends in part on whether the guilty party can either be deemed negligent or entered onto property with intent to remove timber. We believe to be the case in our situation. Civil judgment under NY Real Property Actions and Proceedings Law and NY Environmental Conservation Law requires reparation for restoration of lands damaged by the theft. The wildcard under NYS laws is not the ability to obtain a judgment but, rather, revolves around the understanding by judge or jury (or more accurately, their interpretation) of the word "reasonably" in "the reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration." Obviously, that definition differs from person to person and judge to judge, but this state has recently strengthened law in favor of the victim, and also has precedent that residential shade trees have aesthetic and utility value above stumpage value and can impact real estate market value as well.

If a defendant has admitted guilt and is not effectively considered 'judgment proof', I'm more than willing to initiate court action if need be. Either biz is slow, or our case sufficiently strong for settlement, because there is no shortage of land use attorneys willing to take our case on a very reasonable contingency fee structure without cost and fee billing.

 

[Lucy]

I was referring to this statement you made, so it should be covered under a different section of law, or both.

Originally Posted by Lucy
"Oh, did I mention, the hillside is designated a Steep Slope Environmental Protection Overlay District? "​

Yes, the Town Zoning Law established Environmental Protection Overlay Districts (EPODS). Direct from the Town Zoning Law:

The purpose and intent of the EPODs is to provide special controls over land development located in sensitive environmental areas within the Town. The EPOD regulations are intended to maintain open space and to prevent the irreversible loss of natural resources; enhance the safety of residents and property located within areas of special flood hazard; maintain and/or improve surface water quality; preserve wildlife habitats; enhance the aesthetics of site development; preserve important scenic vistas which are visible from public rights-of-way; maintain soil and slope stability; and control the impacts of development on the environment.

EPOD 2: Steep Slope Protection Overlay District.

A. Purpose and intent. The purpose and intent of the Steep Slope Protection Overlay District is to eliminate the impacts of development activities on steep slopes in the Town by prohibiting activities in these areas.

B. Delineation of district boundaries. The boundaries of the Steep Slope Protection Overlay District shall be delineated on the Official Town of Mendon EPOD Maps and shall include all areas of fifteen-percent or greater slopes and all areas within 50 feet of the toe or top of such slopes. In order to more accurately locate and delineate Steep Slope Protection Overlay District boundaries within the Town, the CEO or Town Engineer may consult other topographic information. This other topographic information may include, but is not limited to, the Soil Survey Report for Monroe County; topographic maps produced by the United States Geological Survey and/or the Monroe County Environmental Management Council; field survey maps; and other appropriate sources.

C. Regulated activities. No person may conduct any development activity within any Steep Slope Protection Overlay District in the Town.​

So exactly what is "development", you ask? Direct from the Town Zoning Law Chapter titled "Definitions and Word Usage":

As used in the Code, the following terms shall have the meanings indicated:

DEVELOPMENT
Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, paving, excavation or drilling operations.​

In those EPODs where development is allowed, an EPOD development permit is required subject to the provisions of the section and prior to the commencement of any regulated activity or the issuance of any permit for regulated development and are subject to the following:

Conservation restrictions.

(1) Where a proposed development or subdivision contains an area delineated on the Official Town EPOD Maps, the Board considering the application has the right to restrict or prohibit the following activities within the EPOD portion of the site:

(a) Construction, including but not limited to structures, roads, bridges, drainage facilities, barns and sheds for animals and livestock and fences subject to New York State's Agricultural District Law which is adopted by the Monroe County Legislature.

(b) Clear-cutting of trees or removal of vegetation or other ground cover.

(c) Change in the natural flow of a stream or disturbance of a streambed.

(d) Placement of septic or other sewage disposal systems.

(e) The use of motorized vehicles, including but not limited to all-terrain vehicles, motorcycles, snowmobiles and motorbikes.​

​

I have met with the town planning board member and technical consultant in charge of EPOD management and a county soil and water conservation district technician to assess the site damage on the hillside. Neither were amused with what they saw; both agree the hillside needs immediate stabilization and long-term erosion control.

County resource tech will prepare and present a site prep and initial erosion control and restoration plan report to the town planning and zoning boards. Immediate action includes site prep and application of native grasses and ground covers plus mulch for temporary stabilization in non-growing months per the NY Standards and Specifications For Erosion and Sediment Control. Native grasses = Conservation Mix: 40% Creeping Red Fescue, 35% Perennial Ryegrass, 25% Empire Birdsfoot Trefoil. Ground cover = Common Periwinkle (Myrtle)(Vinca minor).

The town representative is recommending the town attorney and code enforcement officer prepare a violation citation and cease and desist order to prevent any further cutting and the force the neighbor to incur the cost of erosion control under direction of state DEC and county soil conservation supervision. They are also going to require a relocation of all drain tiles from his roof gutters that currently exit underground onto the hillside and compound the erosion problem.

All in all, it was a good meeting I thought. Hopefully something can be done before the winter weather hits, it will be a real mess in spring.

 

[treeseer]

The town representative is recommending the town attorney and code enforcement officer prepare a violation citation and cease and desist order to prevent any further cutting and the force the neighbor to incur the cost of erosion control under direction of state DEC and county soil conservation supervision. They are also going to require a relocation of all drain tiles from his roof gutters that currently exit underground onto the hillside and compound the erosion problem. .

Thorough work, dealing with erosion at its source and especially getting relevant govt agents involved. I've seen many wronged parties never made whole due to squeamishness about calling in the cavalry. It's like an anti-tattling ethic; wholly misplaced.

JPS that is a scary story about the $12k settlement--big lesson that contractor is responsible for knowing whose land they are on.

 

[John Paul Sanborn]

Native grasses = Conservation Mix: 40% Creeping Red Fescue, 35% Perennial Ryegrass, 25% Empire Birdsfoot Trefoil. Ground cover = Common Periwinkle (Myrtle)(Vinca minor).

Too bad these are shallow rooting plants, can they use any prairie plants like Echinacea (coneflower)Andropogon (Blue stem) that have very deep root systems? I like these because they will penetrate soil strata, the soil horizons can become shear planes if there is nothing tying them together.

 

[Lucy]

Too bad these are shallow rooting plants, can they use any prairie plants like Echinacea (coneflower)Andropogon (Blue stem) that have very deep root systems? I like these because they will penetrate soil strata, the soil horizons can become shear planes if there is nothing tying them together.

Great input. Just the kind of info I was hoping for, thanks. I will bring it up with the conservation folks.

 

[John Paul Sanborn]

There are a number of commercial prairie seed mixes on the market. Prairie Nursery in the Madison, WI area will mix to a given specification. They have a very knowledgeable staff that can help with the spec's, say you want some more woodland types mixed in for boundary areas.

www.prairienursery.com

Besides, a broad mix looks so much better then fescue/rye

I looked at their site and this is the stock erosion control mix;

Erosion Control for Medium Soils

For well-drained loam, sandy loam and clay loam soils
These mixes have been specifically designed to provide rapid vegetative cover and long-term soil stabilization. We added 50% more prairie grass, plus lots of fast-growing prairie flowers. Annual Rye nurse crop is included for rapid green-up. These mixes provide quick cover in combination with deep-rooted perennials to hold the soil for decades to come. Note:'Always apply the appropriate grade of erosion mat on areas subject to water rosion. Seeded areas that are not subject to erosion will benefit from a cover of clean straw applied at a rate of 1.5 to 2.0 tons per acre. This helps retain soil moisture, increasing germination and plant survival.

Contains:
Contains at least 15 wildflowers and 5 or more grasses, plus Annual Rye Nurse Crop.

Wildflowers:
Lavender Hyssop, New England Aster, Frost Aster, Blue False Indigo, White False Indigo, Pale Indian Plantain, Partridge Pea, Wild Senna, Lanceleaf Coreopsis, Purple Prairie Clover, Canada Tick Trefoil, Pale Purple Coneflower, Purple Coneflower, Showy Sunflower, Downy Sunflower, Ox Eye Sunflower, Bergamot, Smooth Penstemon, Yellow Coneflower, Black Eyed Susan, Sweet Black Eyed Susan, Brown Eyed Susan, Compassplant, Stiff Goldenrod, Blue Vervain

Grasses:
Big Bluestem, Sideoats Grama, Canada Wild Rye, Switchgrass, Little Bluestem, Indiangrass, Annual Rye

 

[treeslayer]

WOW, what a thread.............

With my considerable insurance experience, bolstered recently by a week in civil court as a plaintiff, all I can say is GOOD LUCK.

honestly, do you expect to recover any actual $$, or just get a judgement?

A hack tree company with an insurance company willing to pay?

No offense, just curious, I do hope you get a fair recovery.

 

[Lucy]

treeslayer- Sorry if that was too much legal detail, just thought it might be helpful to others in the same situation. At any rate, the neighbor admits responsibility. His insurance co. (not the tree service) has acknowledged he was negligent in writing and already made an unsolicited cash settlement offer. I think they understand they are responsible, but we would like the living privacy and noise screen that was removed from our property physically replaced and the steep slope soil stabilized immediately in lieu of a check.

 

[treeseer]

...They understand they are responsible, but we would like the living privacy and noise screen that was removed from our property physically replaced and the steep slope soil stabilized immediately in lieu of a check.

Restoration is your right.

slayer, in one case 7 mature sugar maples got topped to death, appraisal was $86k and the insurance company settled for ~$50k, on the courthouse steps. as usual, the appraiser did not have to testify.

no matter the quality of the contractor, insured is insured.

how'd your week go--or would you rather not talk about it?

 

[brnchbrkr]

I think they understand they are responsible, but we would like the living privacy and noise screen that was removed from our property physically replaced and the steep slope soil stabilized immediately in lieu of a check.

It sounds like you still may not have a full time lawyer involved with this yet.

Make one whole.

http://legal-dictionary.thefreedictionary.com/make+one+whole

 

[John Paul Sanborn]

Make one whole.

Darn, you beat me to it. A Common Law concept.

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Overview: There is a common law term used among the insurance industry referred to as the "Made whole" rule. While not all states require that insurance companies follow the "Made whole" rule, most do. In the most simplest of terms, the concept of "Made whole" involves the right of an insured, or claimant, to seek full recovery of damages to the extent they are "Made whole" or returned to the pre-claim status. One of the most common areas in which this type of reference is made is within the workers' compensation claims or bodily injury claims associated with auto insurance.
http://jobfunctions.bnet.com/abstract.aspx?docid=380732

http://www.latitudesubro.com/statute/MADE WHOLE IN ALL 50 STATES (00036470).pdf

Here is an essay on subrogation

http://legal-dictionary.thefreedictionary.com/subrogation

 

[treeslayer]

treeslayer- Sorry if that was too much legal detail, just thought it might be helpful to others in the same situation. At any rate, the neighbor admits responsibility. His insurance co. (not the tree service) has acknowledged he was negligent in writing and already made an unsolicited cash settlement offer. I think they understand they are responsible, but we would like the living privacy and noise screen that was removed from our property physically replaced and the steep slope soil stabilized immediately in lieu of a check.

Quite the opposite, Lucy I find it fascinating. A lot of good knowledge in a great thread.
And the 1st tier insurer has tendered an unsolicited offer? WOW.
I'm following closely, keep up the good work. Knowledge is power.

 

[ClimbinArbor]

man i didnt know id need my glasses and a law dictionary when i clicked on this harmless looking thread lol.

as to the question of tree replacement. smaller trees actually establish themselves better and therefor grow faster in most cases than large trees. for instance, if a 2' tree and a 5' tree of the same species are planted besides each other, the 2' may well be the same height of the 5' five years down the road.

Fast growing hybrids are good for a short term solution, but you should also plant longer lived trees with them. most fast growing trees are very susceptible to breaking and decline. by the time the stronger trees are starting to mature, the hybrids will be ready for removal. long term perception is required in tree care, especially while planting.

all tree selection should be done only after a thorough site inspection and soil test, to determine the correct trees.

 

[John Paul Sanborn]

as to the question of tree replacement. smaller trees actually establish themselves better and therefor grow faster in most cases than large trees. for instance, if a 2' tree and a 5' tree of the same species are planted besides each other, the 2' may well be the same height of the 5' five years down the road.

there are some very good university studies that support what we trades people have known for years. U-Conn did a study that showed very good results with 1.5-2 in caliper bare root installations by volunteers.

Fast growing hybrids are good for a short term solution, but you should also plant longer lived trees with them. most fast growing trees are very susceptible to breaking and decline. by the time the stronger trees are starting to mature, the hybrids will be ready for removal. long term perception is required in tree care, especially while planting.

One good thing about the hybrids is that they work well for cyclical coppice. This not only provides an over canopy for the slower growing trees, but a good low level screen for when they start to mature. I like doing this with basswood on narrow tree lines. Basswood has a high rate of basal regeneration and grows fast. The broad leaves provide a very good screening effect.

I'm sure that the consultants have touched on this for you, but a long term maintenance plan should be included to ensure that growth defects are managed in a way that the trees have a better chance of reaching maturity.

In the wild a single tree has a thousands to one chance of making it, which is why out profession is needed more and more as humans take over all the remnant woodlands.

 

[treeseer]

"Basswood has a high rate of basal regeneration and grows fast. The broad leaves provide a very good screening effect.

This method is millennia old, cheap, effective and simple. Which also may explain why many college-educated arborists never heard of it.

"I'm sure that the consultants have touched on this for you, but a long term maintenance plan should be included to ensure that growth defects are managed in a way that the trees have a better chance of reaching maturity.

This is one advantage of Cost of Cure over Trunk Formlua--mtc is built into the appraisal.

re small trees performing, yes there is good data on this;just requires a bit of a wait, which in this case understandably is not desirable.

good advice re mixing fast and slow sp.

 

[John Paul Sanborn]

re small trees performing, yes there is good data on this;just requires a bit of a wait, which in this case understandably is not desirable.

good advice re mixing fast and slow sp.

One of the problem with planning for the now is you often sacrifice the future of the site.

Another facet is that there is an element of reasonableness. At some point third party payors balk at cost of mass plantings of very large stock, with lesser cost one can get a higher density of smaller stock. One of the problems I have found is that injured parties want to get back as close to what they lost as possible, dam the cost.

When the third party payor sees a figure of eight, nine or ten figures they often do not respond, seeing it as ridiculous. A mix of stock, from liners and whips, to a few choice large specimens, will reduce initial cost to a more reasonable level. It will also give the site an improvement that is more sustainable for the very long term.

 

[treeseer]

When the third party payor sees a figure of eight, nine or ten figures they often do not respond, seeing it as ridiculous.

Totally agree--If one method seems unreasonable it makes sense to provide another in addition.

 

[Kate Butler]

I'm late to the party, but fascinated with the dilemma. Have you considered that (without a judgment in place) the offending landowners may simply decide to sell to avoid litigation? I would investigate some sort of recorded lien on their deed to negate this possibility - especially as the cutting enhanced their property value.

Never underestimate the treachery-potential in dealing with an insurance company faced with a large payout.

 

[Lucy]

I'm late to the party, but fascinated with the dilemma. Have you considered that (without a judgment in place) the offending landowners may simply decide to sell to avoid litigation? I would investigate some sort of recorded lien on their deed to negate this possibility - especially as the cutting enhanced their property value.

Wow, that's an interesting thought to ponder! Not sure if selling would effectively insulate them from future action, or if placing a lien in the absence of a judgment is even possible, but I'll certainly pass this on to the attorney. Thank you.