In retrospect, the fact that the client answered the door in a Speedo gave credence to the whole case. In this well-heeled town, many hurdles were overcome to get permission to install the in-ground hot tub. A nifty design was introduced, slogged its way through innumerable boards and committees and was eventually approved. Mr. Speedo was ready to go, but his elation was brief.
Next door, Attorney Killjoy, a major obstacle in the path to tubby nirvana, threw out one last-ditch effort to prevent construction from commencing. The scapegoat, a large European copper beech on his property, lay close to the boundary line.
The edge of the spa area lay 22 feet from the trunk of the 48-inch-dbh specimen. In between lay a downward slope planted with groundcover, a fairly recently laid bluestone walkway, a line of shrubs and two fences within 2 feet of each other. Plans for the spa experience included a row of 6- to 7-foot evergreen shrubs between the spa and the slope. Given the sunken tub and the screening between the properties, Mr. Speedo appeared to have done everything reasonable to spare the neighbor any unwanted moonshots.
Despite it all, Attorney Killjoy sued the Town and Mr. Speedo, citing that considerable damage would be inflicted on the root system of his beloved beech tree, and no tubbing should be allowed.
Wow! Back in my hometown of Hooterville, implying you might have the right to stop your neighbor from digging a hole 20-plus feet from the property line would be met with some hardy guffaws. I was not in Kansas anymore.
Attorney Killjoy produced a report by another arborist warning of potential structural damage, death and carnage: “Wherever the roots are cut, this will create a ‘weak link’ in the structural integrity of the tree. If strong winds blow against a tree on the side where major roots have been cut, there is a strong probability that the tree will topple.”
And: “The combination of both projects (tub and shrub) would almost certainly lead to the rapid decline of the Tree.”
Finally: “It is worth noting that dual injuries (to wit, the excavation requisite to the installation of the pool and the excavation necessary to install 6-foot-tall screening) may result in loss of structural integrity of the Tree. In other words, if critical roots are severed in the process, the Tree may be prone to failure, especially in the event of high winds.”
The above prose also included a completely unrelated image of a dramatic up-rooted tree failure. Holy plum pouch! Close the windows, bolt the door and secure the women and children!
Back when I was a young buck, I knew many things. I now know less than ever. Many trees I had considered an imminent failure 25 years before mock me and my wrinkled carcass as I shuffle on by them.
Attorney Killjoy’s arborist suggested that major damage, resulting in rapid decline and the possibility of whole-tree failure of this considerable specimen, may be the result of a 4-foot-long cut made 22 feet from the tree.
So, let’s look at the facts here. Attorney Killjoy’s arborist discusses the Critical Root Zone (CRZ) of the tree. This zone may be anywhere from 1 to 1.5 feet for each 1 inch of diameter, depending on tree species, age and condition. The CRZ assumes a fairly uniform soil and moisture environment such as you may find in a park or rural area. Urban and suburban environments often are disturbed. There is no telling what may be underground. Fill, utility trenches, compacted areas, irrigation, soil types, hardscape and other factors all present uncertainties. As it was, the existing CRZ already included a driveway, retaining wall, walkway, fence posts, plantings, lawn areas and, oh yeah, a house. Roots are opportunistic and will proliferate wherever conditions are most favorable. How can we know for sure what’s what?
Being a man of action, I boldly suggested what no one else had the audacity to suggest: “Let’s dig a hole and see what’s what.” Brilliant! Mr. Grapesmuggler got out the plans, and we located the edge of where construction would take place. I rolled up my sleeves and got out the high-tech digging tools from the trunk of my trusty ’04 Honda. I dug a sweet trench, 1 foot wide, 4 feet long and 14 inches deep, before I hit an existing drainage pipe lying in a bed of gravel. I took photos of the trench, rootlets and the root pieces removed from the trench. There were plenty of them in the rich, loamy soil. Grass roots, shrub roots and tree roots proliferated, but none over ¼ inch in diameter.
The question of structural stability had been reasonably addressed. If an extended trench were created within an undisturbed area in the CRZ, I would have concerns. The area between the proposed spa and the tree had been disturbed countless times, and the length of the proposed excavation was minimal. IMHO, this project would have little to no impact on the tree.
I was not sure what to make of it all. Attorney Killjoy had no problem with two fences, plantings and a walkway previously installed on Mr. Beanbag’s property. All are far closer to the tree and certainly more injurious. Is the threat of Mr. Speedo in a Speedo that distressing? Will he have to sell the house?
I was not allowed on Attorney Killjoy’s side of the fence, so I bravely stepped out into the public roadway, whipped out my creepy paparazzi lens and began taking pictures of the tree to document what kind of love Mr. Killjoy was bestowing upon it. A rather irate individual, bathrobe attired and hair askew, emerged from the abode and took photos of me taking photos. Good thing my hair was just right that day! I considered taking photos of him taking photos of me taking photos, but somehow refrained.
The root collar was not visible and appeared to have been filled over. A stone retaining wall lay less than two feet from the trunk adjacent to an asphalt driveway. Shrubs were planted around the base. A large limb recently had been removed from the lower trunk. Evidence of phytophthora canker along with a large mechanical wound also were apparent.
Hmm … if Attorney Killjoy loves this tree so much, he should be more concerned with his side of the fence(s)! Beech trees are especially sensitive to disturbance of the root zone. It is fairly remarkable this tree is still viable given the constraints.
Turning to the digital world, I was able to pull up images of the tree from three years earlier. The missing limb was plainly seen happily overhanging the driveway. Perhaps it was shading the house and grass too much?
I reckoned Attorney Killjoy’s arborist, apocalyptic in his thoughts about the tub excavation, would have advised his client that careful consideration should be given before the removal of live wood on any mature tree. The balance achieved to support its mass is tenuous. Beech trees are fair compartmentalizers at best, and large cuts should be avoided. Besides opening the lower trunk up to pathogens, removal of a significant portion of the crown has reduced photosynthetic area and increased the possibility of sun scald to an already stressed tree.
While Operation Tubby might have some negative effect, it would be infinitesimal compared to what’s been going on next door.
I discussed my thoughts with Mr. Nuthut and figured case closed, but was soon after reliving my site visit and inspired trench digging with his attorney. A memorandum was created, debated, dated and instated. I figured case closed, but was soon again reliving my site visit and inspired trench digging with Attorney Killjoy’s attorney during a two-hour deposition. I followed my attorney’s instructions carefully:
• Wait for the questioner to completely finish the question (for me, like suppressing flatulence).
• Pause and wait for a possible objection to the question.
• Answer truthfully and say as little as possible.
• If you don’t know the answer or don’t understand the question, say so.
If you have not been deposed or questioned in court, you may find inconceivable the number of ways a question can be asked. Kind of like former President Clinton debating what “is” is. As you might imagine, many attorneys are angling for you to substantiate their preconceived position or somehow contradict yourself and look dumbass. Stay calm. It’s not personal, and you’re getting paid by the hour. Let your attorney be your guide.
A court date was set, but the judge put a stop to the tomfoolery before I could further pad my fee. He directed that guidelines for reducing any impact to the beech tree during construction shall be created, debated and instated. An independent Certified Arborist would be on site during excavations, which would be done by hand. Case closed. Project Tubby ensues.
OK, that’s all well and good, but it left me wondering where this will all go. The Massachusetts Self Help rule, long a staple in tree law, goes wayyyyy back:
Id. At 233, citing Bliss v. Ball, 99 Mass. 597, 598 (1868). “it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”
This basically implies (I think) that a property owner may prune off limbs and roots of neighboring trees that intrude onto his land and prevent him from using his property in a reasonable (whatever that is) way. The “Hawaii rule” goes one step further, stating, “When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life,” a property owner “may require” the tree owner to pay for the damages and cut back the branches or roots.
So, what kinds of restrictions are reasonable to impose upon a property owner because of a neighboring tree? As living spaces get more congested, there will be more pressure on border trees. Arborists will be asked to provide objective opinions in high-stakes cases. Can a balance be met between personal property rights and tree preservation?
Thousands were spent, but Mr. Speedo prevailed in the Tubby War and in the Constitutional right to “bare” arms and other stuff. Personally, I would have deep-sixed the spa and gone with the inflatable pool, some Mr. Bubble and the three-bean salad. Perhaps I’ve lived in Hooterville too long.
Howard Gaffin, BCMA, RCA and Massachusetts Certified Arborist, is owner of Gaffin Tree & Landscaping, a TCIA member company located in Rowley, Massachusetts.
