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Home My WebLink About2024 01-09 PC PACKETCITY OF GEM LAKE Heritage Hall 4200 Otter Lake Road | Gem Lake, MN 55110 651-747-2790/92 | 651-747-2795 (fax) E-mail city@gemlakemn.org Planning Commission Meeting – January 9, 2024 Call to Order of Planning Commission Meeting By Chair Joshua Patrick at 7:____ p.m. Call of Roll Patrick Farrell Cummings Pratt Wippich Approve and Accept Agenda and Minutes • Accept the Agenda for the January 9, 2024 Planning Commission Meeting • Approve the Minutes from November 14, 2023 Planning Commission Meeting Public Hearings • None Old Business • Ordinance No. 45 Garbage and Refuse Discussion New Business • Gem Lake Tree Policy Discussion Open Items for Commission Members to Bring Up Future Meetings • Next City Council Meeting, Tuesday, January 16, 2024 • Next Planning Commission Meeting, Tuesday, February 13, 2024 o Attendance Inquiry Adjournment – The meeting adjourned at _____ City of Gem Lake Planning Commission Meeting Minutes November 14, 2023 1 | Page City of Gem Lake Planning Commission Meeting – November 14, 2023 Meeting Minutes Planning Commission Chair Joshua Patrick called the meeting to order at 7:00 p.m. Commission Members Art Pratt, Stephanie Farrell and Don Cummings were present. Not present was Derek Wippich. Also present: City Planner Evan Monson, City Attorney Kevin Beck and Acting City Clerk Melissa Lawrence. November 14, 2023 A motion was made by Commissioner Pratt to accept the agenda, seconded by Commissioner Farrell. Voice vote taken, all voted yes, motion passes, agenda accepted. Minutes Commission Cummings requested that a section of the minutes on page 2 be edited to state that the City should be concerned, not that he is only concerned about agricultural use in a residential area. A motion was made by Commissioner Pratt to approve the August 9, 2023, Planning Commission Meeting minutes with the suggested changes, seconded by Commissioner Cummings. Voice vote taken, all voted yes, motion passes, minutes are approved. Public Hearings None Old Business Ordinance No. 45 Garbage and Refuse Discussion and Survey Results City Planner Evan Monson gave the Commission an overview of the results from the Garbage Hauler survey Acting City Clerk Melissa Lawrence sent out to all residents and business owners in Gem Lake. 206 residential surveys and 24 commercial surveys were sent out. The city received 66 responses from residences, and 11 responses from businesses. This equates to a response rate of 32% for resident surveys, and 46% for commercial surveys. The survey asked respondents to answer the following questions: name and address, their current hauler, satisfaction rating of their service (Extremely Satisfied, Somewhat Satisfied, Neither Satisfied nor Dissatisfied, Somewhat Dissatisfied, and Extremely Dissatisfied), approximate monthly cost, and whether the respondent thought the city should contract garbage hauling services in the future. Responses to the survey are attached in a memo and PowerPoint presentation from City Planner Evan Monson. Per Mr. Monson, given the split in opinion, the commissioners may want to forward the information to the City Council to see what direction the Council would like to move in with regards to contracting for hauling services. The commission can review other changes to make to Ordinance 45 in the meantime. Per Acing City Clerk Melissa Lawrence, the survey results discussion has already been added to the City Council agenda for November 21, 2023. Commissioner Cummings shared some topics he thinks the Commission should address in the current ordinance which include language on the maximum size of containers allowed in the city, placement of containers and the visibility/screening of the containers. Commissioner Patrick would like to wait and see what the City Council suggests regarding the results of the survey before the Commission takes a deep dive into the current ordinance. The Commission will continue to look at the ordinance to discuss at a future meeting. City of Gem Lake Planning Commission Meeting Minutes November 14, 2023 2 | Page New Business 2024 Meeting Calendar Commissioner Patrick surveyed the Commission, City Attorney, and City Planner to see if the second Tuesday of each month still works for everyone’s schedule. At this time that meeting schedule works for everyone. If an election happens to fall on that Tuesday, the Commission is ok with pushing the meeting one day or holding it in the small conference room. Open Items for Commission Members to Bring Up None Future Meetings City Council Meeting, Tuesday, November 21, 2023 at Heritage Hall, and Planning Commission Meeting, Tuesday, December 12, 2023 at Heritage Hall is CANCELED. Attendance Inquiry Commissioner Chair Patrick surveyed the Commission to see if any of the members would have any issues attending the January 9, 2024 meeting. At this time those in attendance have no scheduling conflicts. Adjournment Being there no further business, following a motion from Commissioner Pratt, seconded by Commissioner Farrell, the meeting adjourned at 7:33 p.m. Respectfully submitted, Melissa Lawrence Ordinance No. 45 Garbage and Refuse 1 City of Gem Lake, Ramsey County, Minnesota Garbage and Refuse Ordinance No. 45 AN ORDINANCE REGULATING THE DISPOSAL OF GARBAGE, RUBBISH, AND OTHER REFUSE PROVIDING PENALTIES FOR VIOLATION THEREOF. THE CITY COUNCIL OF THE CITY OF GEM LAKE ORDAINS: Section 1. Purpose. It is the purpose of this ordinance to regulate the disposal of garbage, rubbish, and other refuse in the City of Gem Lake so as to control rats and other vermin and otherwise protect the health of the inhabitants and property located in the City. Section 2. Definitions. For the purpose of this ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. 1. Commercial Establishment. Shall mean any premises where a commercial or industrial enterprise of any kind is carried on, and shall include hotels and boarding houses, clubs, churches, and establishments of nonprofit organizations where food is prepared or served or goods are sold. 2. Garbage. Shall mean animal and vegetable wastes resulting from the handling, preparation, cooking, service and consumption of food and shall also include all other animal wastes, but shall not include refuse or hazardous waste 3. Hazardous Waste. Shall mean hazardous waste as defined in Minnesota Statutes, Section 116.06, subdivision 13. 4. Incinerator. Shall mean any device sued for the destruction of refuse, rubbish, or waste materials by fire. 5. Open Burning. Means the burning of any matter whereby the resultant combustion products are emitted directly to the atmosphere without passing through an adequate stack, duct, or chimney. 6. Refuse. Shall include all wastes which normally result from the operation of a household, except body wastes and garbage, including, but not limited to, rubbish, tin cans, paper, cardboard, glass jars, bottles, wood, grass clippings, Christmas trees, ashes, sod, dirt, tires, rocks, household construction material, cement bricks, trees, leaves, hedge or tree trimmings, burning barrels and mesh backyard burners, household appliances and furniture, or any other household refuse or materials small enough for one man to handle. The term "refuse" shall not include hazardous waste, construction material or other waste or debris resulting from construction or reconstruction of buildings and other improvements by contractors, or trees in excess of six (6) inches in diameter. 7. Residential Dwelling Unit. Shall mean any single building consisting of four (4) or less separate dwelling places, with individual kitchen facilities for each. Any building containing more than four (4) dwelling places, with individual kitchen facilities, shall be deemed "multiple dwelling residences." Section 3. Disposal of Garbage and Refuse. Every tenant, lessee, owner, or occupant of every private dwelling, house multiple residence, store, motel, restaurant, and every other type of property in the city which accumulates garbage or refuse or both on such premises shall dispose of such garbage and refuse as provided in this section. Garbage and refuse shall be disposed of at least once each week from residential dwelling unit properties. Garbage and refuse in outside storage at any commercial establishment shall be disposed of at least once each week and as often as once each day if necessary to protect the public health. No person shall accumulate or permit to accumulate any refuse on any property in the city which might constitute a nuisance by reason of appearance, odor, sanitation, possible littering of neighboring properties, littering of the property on which the refuse is accumulated, attracting rats or other vermin, or a fire hazard. Ordinance No. 45 Garbage and Refuse 2 Section 4. Collection, Supervision, and Control. The City Council shall have the authority to make regulations concerning the days of collection, type and location of waste containers, and such other matters pertaining to the collection, conveyance, and disposal as they shall find necessary, and to change and modify the same. Any person aggrieved by a regulation of the City Council shall have the right of appeal to the City Council which shall have the authority to confirm, modify, or revoke any such regulation. Section 5. Pre-Collection Practices. Grass clippings, leaves, and other similar refuse shall be placed in bags or bundles not exceeding three (3) feet in any dimension and securely fastened to avoid spillage. Household appliances and furniture falling within the definition of refuse need not be so packaged. All refuse deposited for pickup shall be placed next to the property line unless the commercial private garbage and refuse collector agrees to pick up such refuse from some other location on the premises. Refuse shall be deposited at one place, at ground level, on each property. Refuse and garbage shall not be deposited on the traveled roadway on any street or alley. Refuse and garbage shall not be deposited next to streets or alleys for collection prior to 3:00 p.m. on the day preceding the day of collection and containers and any garbage or refuse which is not picked up shall be removed from any such location on the day of collection. Section 6. Preparation of Garbage and Refuse. Except as otherwise provided in Section 4, all garbage and refuse as accumulated on any premises shall be placed and maintained in containers and shall have drained from it all free liquids before being deposited for collection and shall be wrapped or bagged. Section 7. Contagious Disease Refuse. Refuse such as, but not limited to, bedding, wearing apparel, or utensils from residential dwelling units or other units where highly infectious or contagious diseases are present shall not be deposited for regular collection but shall be disposed of as directed by the health officer or his deputy at the expense of the owner or possessor thereof. Section 8. Hazardous Waste; Hazardous Waste Regulations. All hazardous waste, including but not limited to, explosive and highly flammable material, shall be disposed of in accordance with applicable laws and regulations of the United States of America and the State of Minnesota, including regulations and permit requirements established by the Minnesota Pollution Control Agency and the Minnesota Waste Management Board. Section 9. Duty to Provide and Maintain Containers in Sanitary Conditions. Garbage and refuse containers shall be provided by the owner, tenant, lessee, occupant of the premises or garbage and refuse collector, located in such a manner so as to prevent them from being overturned. Such containers shall be kept in a clean and sanitary condition and kept free from any substance which will attract or breed flies, mosquitoes, or other insects. No garbage or refuse container shall exceed thirty-two (32) gallons in capacity or have ragged or sharp edges and any other defect liable to hamper or injure the person collecting the contents thereof. Containers not complying with the requirements of this ordinance shall be promptly replaced upon notice. Garbage containers shall be made of metal, or other suitable material, which is rodent, fire, and waterproof and which will not easily corrode and is equipped with suitable handles and tightfitting covers and shall be kept tightly covered when there is garbage therein. Refuse containers shall be of a kind suitable for collection purposes, and shall be of such size and weight that they can be handled by one man, and kept tightly covered when there is refuse therein. Section 10. Multiple Dwelling Residences. Multiple dwelling residences shall either be equipped with refuse containers and refuse pickup service as provided in this paragraph 10 or be equipped with a commercial incinerator complying with the requirements of the Minnesota Pollution Control Agency. Refuse containers provided as an alternative to or in addition to such incineration shall be at least one (1) cubic yard in capacity, shall be conveniently located in relationship to the residence units for which they are provided, shall be water-tight and rodent-proof with self-closing lids and shall be kept in an enclosing structure concealing them from public view. Such structure shall have a raised concrete floor and shall be surrounded by a concrete barrier curb. Such structure shall be kept in a state of good repair at all times. The refuse containers shall be located so that their contents are inaccessible to at least three (3) feet above the base of the enclosing structure. The owner or operator of such multiple dwelling residence shall provide for garbage pickup from such containers each day. Refuse, debris, garbage and other waste materials shall not be permitted to be accumulated in or near the enclosing structures (except in the containers). There shall be daily cleanup in and around each such enclosing structure. Ordinance No. 45 Garbage and Refuse 3 Section 11. Commercial Establishments. The owner or occupant of any commercial establishment or any other property which provides a volume of garbage or refuse or both, which requires garbage and refuse pickup more frequently than once a week, shall also comply with the provisions of the foregoing Section 10. Section 12. Disposition by Burning; Air Pollution Control Regulations. No person shall dispose of garbage or refuse by burning except in accordance with applicable state law and regulations, including the conditions of any open burning permit obtained for such purpose. The regulations of the Minnesota Pollution Control Agency, which have been adopted and incorporated by reference by City Ordinance No. 44 require that a permit be secured for open burning. Section 13. Vehicles for Hauling Garbage and Refuse. All persons hauling or conveying garbage or refuse over the streets in the city shall use a vehicle provided with a tight cover and so operated and maintained as to prevent offensive odors escaping therefrom and garbage or refuse from being blown, dropped or spilled from the vehicle. Any such vehicles shall be kept clean and as free from offensive odors as possible, and, if customarily used for the hauling of garbage or refuse, shall not be allowed to stand in any street, alley, or other place longer than is reasonably necessary to collect garbage and refuse. Any vehicle customarily used for such purposes shall be kept in a clean and sanitary condition and shall be thoroughly disinfected at least once each week unless the same has not been used since the last disinfection thereof. Section 14. Hours for Hauling Garbage and Refuse. No person engaged in hauling refuse or garbage for hire within the city shall do so after eight thirty o'clock p.m. or before six thirty o'clock a.m. on any day. There shall be no garbage or refuse pickup from residential dwelling units on Sunday. Section 15. Inspection. Each vehicle engaged in hauling garbage or refuse in the city shall be subject to inspection by the city at all reasonable times. Any such vehicle, while it is used in the city, shall have the name of the owner clearly printed on both sides. Section 16. Obligation of Commercial Collectors. A commercial garbage and refuse collector shall pick up any garbage and refuse of his customers which has been deposited for collection, in the manner provided by this ordinance. Section 17. Disposal of Garbage and Refuse; Solid Waste Disposal Regulations. No person shall dispose of garbage or refuse upon any property in the city except at a sanitary landfill site, resource recovery facility or other mixed solid waste disposal facility, approved in accordance with applicable law, including Minnesota Statutes Sections 473.801 to 473.834, and the rules and regulations of the Minnesota Pollution Control Agency. Pursuant to Minnesota Statutes Section 471.62, the Solid Waste Disposal Regulations, of the Minnesota Pollution Control Agency are hereby adopted by reference. Section 18. Storage of Garbage and Refuse Containers. Garbage cans and other garbage and refuse containers shall be so located as to be out of the public view, insofar as possible, except on the day of pick up. Section 19. Penalties. Any person violating any of the provisions of this ordinance shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount not to exceed $700 for each violation or both. Section 20. Enactment. This Ordinance No. 45 was enacted and placed in full force and effect on 15 August 1983 by a unanimous vote of the Gem Lake City Council. CERTIFIED COPY LA605 4-2 (1) CHAPTER 2 GARBAGE AND REFUSE1 SECTION: 4-2--1: Definitions 4-2--2: Disposal Of Garbage And Refuse 4-2--3: Collection, Supervision And Control 4-2--4: Precollection Practices 4-2--5: Containers 4-2--6: Multiple Residence Units 4-2--7: Commercial Establishments 4-2--8: Air Pollution Control Regulations 4-2--9: Private Composting 4-2-10: Vehicles For Hauling Garbage And Refuse 4-2-11: Garbage And Refuse Collectors 4-2-12: Disposal Facility 4-2-13: Fines and Revocation 4-2-14: Penalty 4-2-1: DEFINITIONS: For the purpose of this Chapter, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word shall is always mandatory and not merely directory: COMMERCIAL ESTABLISHMENT: Any premises where a commercial or industrial enterprise of any kind is carried on, and shall include clubs, churches and establishments of nonprofit organizations where food is prepared or served or goods are sold. GARBAGE: All putrescible animal and vegetable wastes resulting from the handling, preparation, cooking, service and consumption of food including containers or wrappers wasted along with such materials, but not including recyclable materials. INCINERATOR: Any device used for the destruction of refuse, rubbish, or waste materials by fire. LICENSED PRIVATE GARBAGE AND REFUSE COLLECTOR: Any person holding a valid license from the City for the collection of garbage and refuse. MIXED MUNICIPAL SOLID WASTE: Shall have the meaning given it in Minnesota Statutes Section 115A.03, Subdivision 21. 1. M.S.A. § 412.221, subd. 22. LA605 4-2 (2) OPEN BURNING: Burning of any matter whereby the resultant combustion products are emitted directly to the open atmosphere without passing through an adequate stack, duct, or chimney. PUTRESCIBLE: Liable to become putrid. RUBBISH: All nonputrescible solid wastes, but not including recyclable materials. RECYCLABLE MATERIALS: Materials that are separated from mixed municipal solid waste for the purpose of recycling, including paper, glass, plastics, metals, automobile oil, and batteries. REFUSE: Garbage, rubbish and all other putrescible and nonputrescible wastes, except sewage and water-carried trade wastes, but not including recyclable materials. RESIDENTIAL DWELLING UNIT: Any single building consisting of four (4) or less separate dwelling units with individual kitchen facilities for each. It also includes any boarding house in a residential district. (Ord. 11, 7-7-1970) YARD WASTE: Means garden wastes, leaves, lawn cuttings, weeds, shrub and tree waste, and prunings. 4-2-2: DISPOSAL OF GARBAGE AND REFUSE: A. Disposal Required: Every tenant, lessee, owner, or occupant of every private dwelling, house, multiple residence, store, motel, restaurant, and every other type of property in the City shall dispose of such garbage and refuse as provided in this Chapter. B. Minimum Disposal Requirements: 1. Collection Required: Unless otherwise exempt pursuant to subdivision 2 hereof, each residence, multiple dwelling, and commercial establishment in the City shall contract with a hauler licensed by the City for at least weekly collection of garbage and rubbish. 2. Exemptions: A residence, multiple dwelling, or commercial business may be exempted from the requirements of subdivision 1 hereof upon demonstrating to the satisfaction of the City that an environmentally sound alternative method of solid waste disposal will be used. Application for an exemption will be made on a form provided by the City. The application shall be reviewed by the City Administrator who shall approve or deny the application and shall notify the applicant, in writing, of the decision. The exemption must be applied for every two years. Any applicant aggrieved by the decision of the City Administrator may appeal that decision to the City Council within ten (10) days of the date of the written notice. The City Council shall hear the LA605 4-2 (3) appeal at a regularly scheduled meeting. C. Accumulation Prohibited: No person shall accumulate or permit to accumulate any refuse on any property in the City which might constitute a nuisance by reason of appearance, odor, sanitation, possible littering of neighboring properties, littering of the property on which the refuse is accumulated, or a fire hazard. (Ord. 11, 7-7-1970) 4-2-3: COLLECTION, SUPERVISION AND CONTROL: A. Authority To Regulate: The City Council shall have the authority to make regulations concerning the days of collection, number of licenses in the city, type and location of waste containers and such other matters pertaining to the collection, conveyance, and disposal as it shall find necessary, and to change and modify the same. B. Right To Appeal: Any person aggrieved by a regulation of the City Council shall have the right of appeal to the City Council which shall have the authority to confirm, modify, or revoke any such regulation. (Ord. 11, 7-7-1970) 4-2-4: PRECOLLECTION PRACTICES: A. Preparation Of Garbage Or Refuse: Grass clippings, leaves, and other similar refuse shall be placed in bags or bundles not exceeding three feet (3') in any dimension and securely fastened to avoid spillage. Household appliances and furniture falling within the definition of refuse need not be so packaged. B. Placement For Pickup: Refuse shall be deposited at one place, at ground level, on each property. Refuse and garbage shall not be deposited on the traveled roadway of any street. C. Time Of Placement; Removal: Refuse and garbage shall not be deposited next to streets for collection prior to six o'clock (6:00) P.M. on the day preceding the day of collection, and containers and any garbage or refuse which is not picked up shall be removed from any such location on the day of collection. D. Containers, Wrapping Or Bagging Required: Except as otherwise provided in subsections A, B and C, all garbage and refuse as accumulated on any premises shall be placed and maintained in containers and shall have drained from it all free liquids before being deposited for collection and shall be wrapped or bagged. E. Explosive Or Highly Flammable Material: No explosive or highly flammable material shall be so deposited. Such material shall be disposed of as directed by the Fire Inspector at the expense of the owner or possessor thereof. LA605 4-2 (4) F. Contagious Disease Refuse: Refuse such as, but not limited to, bedding, wearing apparel, or utensils from residential dwelling units or other units where highly infectious or contagious diseases are present shall not be deposited for regular collection but shall be disposed of as directed by the Health Officer at the expense of the owner or possessor thereof. (Ord. 11, 7-7-1970) 4-2-5: CONTAINERS: A. Provided By Licensed Private Garbage and Refuse Collector: Garbage and refuse containers shall be provided by the licensed private garbage and refuse collector and located in such a manner so as to prevent them from being overturned. B. Sanitary Condition: Such containers shall be kept in a clean and sanitary condition and kept free from any substance which will attract or breed flies, mosquitoes, or other insects. C. Size and Type: No garbage or refuse container shall exceed ninety (90) gallons in capacity or have ragged or sharp edges or any other defect liable to hamper or injure the person collecting the contents thereof. Containers shall be made of metal, or other suitable material, which is rodent, fire, and waterproof and which will not easily corrode and is equipped with suitable handles and tight-fitting covers and shall be kept tightly covered when there is garbage therein. D. Nonconforming Containers: Containers not complying with the requirements of this Chapter shall be promptly replaced upon notice. E. Storage Of Containers: Garbage cans and other garbage and refuse containers shall be so located as to be out of the public view, insofar as possible, except on the day of pickup. (Ord. 11, 7-7-1970) 4-2-6: MULTIPLE RESIDENCE UNITS: A. Pickup Service Or Commercial Incinerator Required: Multiple residence units having more than four (4) family units shall either be equipped with refuse containers and refuse pickup service as provided in this Chapter or be equipped with a commercial incinerator complying with the requirements of the Minnesota Pollution Control Agency and licensed by the City as provided in this Chapter. B. Containers: Refuse containers provided as an alternative to or in addition to such incineration shall be at least one cubic yard in capacity, shall be conveniently located in relationship to the residence units for which they are provided, shall be watertight and rodentproof with self-closing lids and shall be kept in an LA605 4-2 (5) enclosing structure concealing them from public view. Such structure shall be kept in a state of good repair at all times. Refuse, debris, garbage and other waste materials shall not be permitted to be accumulated in or near the enclosed structures (except in the containers). There shall be daily cleanup in and around each such enclosed structure. (Ord. 11, 7-7-1970) 4-2-7: COMMERCIAL ESTABLISHMENTS: The owner or occupant of any commercial establishment or any other property which produces a volume of garbage or refuse or both, which requires garbage and refuse pickup more frequently than once each week, shall also comply with the provisions of Section 4-2-6 of this Chapter. (Ord. 11, 7-7-1970) 4-2-8: MINNESOTA AIR POLLUTION CONTROL AGENCY REGULATIONS ADOPTED: A. Regulation Adopted: Pursuant to Minnesota Statute Section 471.62, subject to specific modifications and additions contained herein, the City hereby adopts by reference Minnesota Rules Chapter 7009(Ambient Air Quality Standards), as amended. 4-2-9: PRIVATE COMPOSTING The private composting of yard wastes and vegetable matter is permitted if the following conditions are met: A. The compost pile shall be located in the rear yard of a lot and out of the public view, insofar as possible. B. The compost pile shall be managed so as to prevent the scattering of yard wastes or other material. C. The compost pile shall be managed in a manner to prevent odor, harborage of animals, and the stockpiling of material which does not readily decompose within a calendar year including but not limited to refuse, fibrous materials, and prunings. D. Only the yard waste and vegetable matter which are produced on the premises can be composted on the premises. 4-2-10: VEHICLES FOR HAULING GARBAGE AND REFUSE: A. Cover Required: All persons hauling or conveying garbage or refuse over the streets of the City shall use a vehicle provided with a tight cover and so operated and maintained as to prevent offensive odors escaping therefrom and garbage or refuse from being blown, dropped or spilled from the vehicle. LA605 4-2 (6) B. Cleanliness: Any such vehicles shall be kept clean and as free from offensive odors as possible. C. Standing On Streets: Any such vehicle customarily used for the hauling of garbage or refuse shall not be allowed to stand in any street, alley, or other place longer than is reasonably necessary to collect garbage and refuse. D. Disinfection: Any vehicle customarily used for such purposes shall be kept in a clean and sanitary condition. 4-2-11: GARBAGE AND REFUSE COLLECTORS: A. License Required: No person shall engage in the business of garbage or refuse collection in the City unless he or she first pays the license fee as prescribed by resolution of the City Council and secures a license from the City to do so in accordance with the provisions of this Section. A license shall be valid for a period of one (1) year beginning February 1 and ending January 31. All licenses shall be subject to the review and approval of the City Council. B. Application: Any person desiring a license shall make application to the City Administrator. The application shall accurately state: 1. The name of the owner or the licensee; 2. The proposed charges for the hauling; 3. A description of the kind of services to be rendered; 4. A description of each motor vehicle to be used for hauling, including the license number thereof; and 5. The manner and kind of service proposed to customers and the schedule of pickups. C. Insurance: 1. Policy Of Insurance: No license shall be issued until the applicant files with the City Administrator a current certificate of insurance covering all vehicles to be used by the applicant in the business. 2. Minimum Limits: The minimum limits of coverage shall sufficiently cover the city’s maximum liability as provided by Minnesota Statutes Chapter 466, as amended. 3. Notice Of Termination: Such insurance shall be kept in force during the term of the license and shall provide for notification of the City prior to termination or cancellation. LA605 4-2 (7) 4. Revocation Of License: Any license issued shall automatically be revoked at the time of termination or cancellation of such insurance unless and until other insurance is provided as required by this subsection. D. Bond: Before a license is granted, the applicant shall furnish to the City and deposit with the City Administrator a certified bond in the sum of one thousand dollars ($1,000.00) to be used for fines imposed by the City for violations of this Ordinance as well as the faithful performance by the licensee for all work entered into. E. License Fee: The annual license fee is for the first vehicle and for each additional vehicle in the business of garbage and refuse hauling within the City. F. Days and Hours of Collection: Residential garbage or refuse collection shall only occur on Mondays between the hours of seven (7:00) A.M. and eight thirty (8:30) P.M. When Monday is designated a legal holiday, residential garbage or refuse collection shall occur on the Tuesday immediately following the holiday. G. Inspection1: Each vehicle for which a license is applied for or which is licensed shall be subject to inspection by the City at all reasonable times. H. Vehicles2: 1. Name Of Licensee: Any such vehicle, while it is used by the licensee in the City, shall have the name of the licensee clearly printed on both sides of the vehicle. 2. License To Be Kept In Vehicle: The license for the vehicle shall be kept in the vehicle at all times while it is being so used. I. No Vested Right: No person licensed pursuant to this Section shall gain a vested right in said license. The City may, upon finding that public necessity requires, determine to establish another means of refuse collection. J. Obligation Of Licensed Collectors: A licensed garbage and refuse collector shall pick up any garbage and refuse of his customers which has been deposited for collection in the manner provided by this Chapter. (Ord. 11, 7-7-1970; 1996 Code) 4-2-12: DISPOSAL FACILITY: 1. See also subsection 2-4-2B2 of this Code. 2. See also Section 4-2-10 of this Chapter. LA605 4-2 (8) Garbage or refuse shall be disposed of at an approved waste facility permitted by the Minnesota Pollution Control Agency. 4-2-13: FINES AND REVOCATION: A. FINES FOR ORDINANCE VIOLATIONS BY LICENSEES: Fines for ordinance violations by licensees shall consist of two hundred fifty dollars ($250) per occurrence and shall be payable within 30 days of written notification by the City. These penalties are presumed to be appropriate for every case, however, the Council may deviate in an individual case where it finds that there exists substantial reasons making it more appropriate to deviate. Non-renewal of the Municipal Garbage Hauler License may be considered for any licensee that has three or more violations occur over a period of three hundred and sixty-five (365) days. For purposes of this Section, a licensee’s violations are accumulated over a period of three hundred and sixty-five (365) consecutive days and shall exonerate after this time. Violations by a licensee shall also expire in the event of change of ownership unless specified otherwise by the City Council. B. REVOCATION FOR ORDINANCE VIOLATIONS BY LICENSEES: A garbage or refuse collector’s license may be revoked by the City upon occurrence of any of the following: 1. The licensee fails to comply with the provisions of this ordinance or other city ordinances, or is in violation of county ordinances, and/or state or federal laws, rules or regulations; or 2. The City determines that the licensee’s performance of refuse collection, hauling or disposal is unsatisfactory based on complaints received about the licensee. 4-2-14 PENALTY: Any person violating any of the provisions of this Chapter shall be subject to the penalties provided for in Section 1-4-1 of this Code. (Ord. 11, 7-7-1970) Nothing in this section shall be construed to limit the City’s other available legal remedies for any violation of the law, which may constitute a violation of the ordinance including criminal, civil, injunctive or others. LA605 4-2 (9) Last revised June 24, 2014. Revised 8/24/11 §501.010 PUBLIC HEALTH, WELFARE AND SANITATION §501.020 V. PUBLIC HEALTH, WELFARE AND SANITATION 501. Garbage Collection §501.010 GARBAGE COLLECTION; CONTRACT FOR GARBAGE AND REFUSE COLLECTION. The City of White Bear Lake has entered into a contract for the pick-up and disposal of garbage and refuse from residences and other stated localities within the City of White Bear Lake. The contract shall set forth the duties and responsibilities of both the City and the Contractor. The current contract shall be on file in the office of the City Clerk and shall be available for public inspection during normal business hours. (Ref. Ord. 753, 12/8/87) §501.020 GARBAGE COLLECTION; DEFINITIONS. As used in this chapter, unless the particular context shall clearly require some other meaning, the following words shall mean: Subd. 1. Dwelling Unit. a. Single Family Dwelling Unit. The term, single family dwelling unit shall mean a separate dwelling place with a kitchen or area for the preparation of food which is a free-standing, duplex or four-plex residential housing unit which does not have shared refuse service which is provided by a landlord or housing association agreement. (Ref. Ord. 873, 4/14/92; 1000, 3/11/03). b. Multi-Family Dwelling Unit. The term, multi-family dwelling unit shall mean a building or complex which provides more than four (4) residential dwelling units with a kitchen or area for the preparation of food as part of a large building or complex which, as part of the rental fee or association dues, provides refuse service for the entire group of households with large vat type containers. (Ref. Ord. 873, 6/14/92; 1000, 3/11/03) Subd. 2. Garbage. The term garbage means putrescible wastes, including animal offal and dead animals weighing less than ten (10) pounds but excluding human excreta, sewage, and other sanitary wastes. (Ref. Ord. 1000, 3/11/03) Subd. 3. Recyclables. The term recyclables shall mean materials that are separated from mixed municipal solid waste for the purpose of recycling, including paper, glass, plastic, metals, textiles, automobile oil, and batteries. Refuse-derived fuel or other material that is destroyed by incineration is not a recyclable material (Ref. Ord. 1000, 03/11/03). Subd. 4. Refuse. The term refuse as used herein shall include all wastes (except body wastes), including but not limited to, garbage as defined above, rubbish, tin cans, paper, cardboard, glass jars, bottles, grass clippings, leaves, Christmas trees, building materials not being used in conjunction with a legally authorized construction project and ashes which normally result from the operation of a household, but not including recyclable material stored in an approved recyclable container. Subd. 5. Refuse Container. The term refuse container shall mean a rigid closed, water tight container designed for such storage with a tight fitting cover, which is rodent and fly proof, of a suitable gage and construction to ensure durability and with suitable handles on both the container and lid and of a capacity of up to ninety (90) gallons. (Ref. Ord. 1000. 3/11/03) Revised 8/24/11 §501.030 PUBLIC HEALTH, WELFARE AND SANITATION §501.041 Subd. 6. Yard Waste. Yard waste shall mean lawn cuttings, leaves, weeds, garden wastes and soft-bodied plants. (Ref. Ord. 1000, 3/11/03) Subd. 7. Yard Waste Container. The term yard waste container as used herein shall mean a plastic waterproof bag of up to thirty-nine (39) gallon size and one and one-half (1 ½ ) mil thickness and shall not exceed thirty-five (35) pounds in weight when full. (Ref. Ord. 1000, 3/11/03) §501.030 GARBAGE COLLECTION; UNLAWFUL ACTS. It shall be unlawful for any person, firm or corporation to not dispose of refuse and yard waste which accumulates upon their property at least once a week. Every householder, occupant or owner of any single family dwelling unit or any other structure utilized for dwelling purposes shall use the garbage and refuse collection service as provided by the City of White Bear Lake. Multi-family housing units are exempt from this contract requirement. (Ref. Ord. Nos. 495, 6/9/70; 554, 7/10/73; Ord. 873, 6-14-92; Ord. 1000, 3/11/03) §501.040 REFUSE YARD WASTE AND RECYCLABLES COLLECTION: CONTAINERS REQUIRED, EXCEPTION, COLLECTION. All refuse (excluding Christmas trees) shall be kept in containers as defined above. All yard waste shall be kept in yard waste containers or refuse containers as defined above. All recyclable material shall be kept in a container made available through the City’s recycling program or other container approved by the Director of Public Works. There is no limit to the number of refuse containers that will be picked up. (Ref. Ord. 873, 6/14/92) Pick-up and disposal of refuse from multi-family housing dwelling units shall be by a standard rubbish container of one (1), two (2), three (3) or four (4) cubic yard capacity, to be furnished by and maintained by the Contractor. Actual service needs are to be determined by volume accumulations as determined by the Code Enforcement Officer, upon review with the Contractor. Container service is subject to continuing review by the Code Enforcement Officer. Other types of containers such as oil drums, fiber drums, barrels, cardboard boxes and paper bags will not be accepted as refuse or garbage containers. On the collection day determined by the City, refuse, yard waste, and recycling containers shall be placed on the curb along the public roadway adjacent to the customer's building and in areas where there is a public alley, containers shall be placed on the alley line for collection; provided, that special "walk-in" service at the dwelling shall be provided for handicapped persons who have filed a doctor's certificate with the City Clerk. Containers must be placed properly for pick-up prior to six (6:00) o'clock a.m. on the day of collection to ensure service. The Contractor shall complete pickups by ten (10:00) o'clock p.m. unless emergency permission is granted by the City Manager's office. §501.041 ENCLOSURE OF CONTAINERS. All garbage or refuse containers exceeding seventy-five (75) gallons in size and located on property used for purposes other than single family residential, shall be contained within a building or within an area which has an impermeable floor surface and is enclosed and screened within a 90% or greater opaque wooden or metal fence or masonry wall not less than six (6) feet in height having a gate or doorway which remains closed except for access purposes. All enclosures must be large enough to allow adequate area for the storage of recyclable material containers. (Ref. Ord. 873, 6/14/92) In cases of special hardship, the applicant may apply for a variance as provided for in §1301.060, and the City Council may grant a variance from the requirements of this section and establishing special requirements necessitated by the variance. (Ref. Ord No. 756, 1/12/88) Revised 8/24/11 §501.050 PUBLIC HEALTH, WELFARE AND SANITATION §501.090 §501.050 GARBAGE COLLECTION; SERVICE. It shall be the responsibility of every resident to notify the City at least one (1) week in advance of starting or discontinuing garbage collection service. (Ref. Ord Nos. 495, 6/9/70; 554, 7/10/73) §501.060 REFUSE COLLECTION; MAINTENANCE OF SANITARY CONDITIONS. Persons accumulating garbage or refuse shall comply with the following requirements: 1. No person shall place any refuse in any street, alley, or other public place, or upon any private property whether owned by such person or not, unless it be in proper containers for collection or under express approval granted by the City Manager. Nor shall any person throw or deposit any refuse in any stream or other body of water. 2. No person shall cast, place, sweep or deposit any garbage or refuse in any manner that it may be carried or deposited by the elements off his property within the City. 3. No person shall bury or burn any refuse or yard waste in the City except in accordance with regulations established by the State Pollution Control Agency. 4. The removal of wearing apparel, bedding or other refuse from homes or places where highly infectious or contagious diseases have prevailed shall be performed under the supervision and direction of the Health Officer. Such refuse shall not be placed in containers for regular collections. (Ref. §602.060, Code 1966; Ord. Nos. 495, 6/9/70; 554, 7/10/73) §501.070 REFUSE COLLECTION; FEES. All residential property within the city on which housing with one to four units is located shall be provided with and subject to the cost of weekly refuse collection provided by the City at the price provided herein. Subd. 1. Refuse Collection Rates. 1. All refuse collection services provided each residential customer from single- family through four-plexes shall be charged at the following monthly rates: Non- Taxable Taxable Total 30-gallon – senior $7.60 $1.90 $9.50 30-gallon 7.75 1.95 9.70 60-gallon 11.40 2.85 14.25 90-gallon 15.50 3.90 19.40 2. All amounts due hereunder shall be payable to the City on the fifth (5th) day of the month following the month in which the statement is presented. A penalty of ten (10%) percent shall be added to all bills not paid by the date fixed for final payment and garbage and refuse service may be stopped without notice. §501.090 PUBLIC HEALTH, WELFARE AND SANITATION §501.090 Revised 8/24/11 3. Rates shall be effective for refuse billings processed after September 1, 2011. (Ref. §602.070, Code 1966; Ord. Nos. 495, 6/9/70; 554, 7/10/73; 823, 11/27/90; 873, 6/14/92; 1000, 3/11/03; 1071, 7/27/10; 8/24/11) §501.080 REFUSE COLLECTION; LIENS. Each charge levied by and pursuant to this chapter is hereby made a lien upon the corresponding lot, land or premises served hereunder and all such charges which are on July thirty-first (3lst) of each year more than thirty (30) days past due and having been billed properly to the occupant of the premises served, shall be certified by the City Clerk to the Auditor of Ramsey County before the tenth (lOth) day of October of each year and the City Clerk in so certifying such charges to the County Auditor shall specify the amount thereof, the descriptions of the premises served, the name of the owner thereof and the amount so certified shall be extended by the Auditor on the tax roll against such premises in the same manner as other taxes, and collected by the County Treasurer and paid to the City Clerk, along with other taxes. (Ref. §602.080, Code 1966; Ord. Nos. 495, 6/9/70; 554, 7/10/73) §501.090. REFUSE COLLECTION; LIMITED EXCEPTION. A limited exception to the exterior storage of garbage and/or refuse is composting as permitted under the Composting Municipal Code Section 509. (Ref. Ord. No. 862, 2/11/92; 1000, 3/11/03.) Revised 7/27/10 City of Gem Lake Tree Policy Definitions The Right of Way/Boulevard is 60 feet and defined as follows; 30 feet from the center of the City Street Road to the property owners property. Trees within this space or branches that overhang this space are the responsibility of the City. Reasons for Tree Maintenance Branches are pruned throughout the tree to remove unhealthy, broken, or rubbing limbs to improve the overall health and symmetry of the tree. This trimming program is also necessary to provide safe sight lines and allow sufficient overhead clearance for delivery trucks, city vehicles, and maintenance equipment. Ultimately, the results of pruning are to keep the trees healthy and less susceptible to wind damage and disease. The city does not prune branches that are from a tree that is growing in the Right of Way/Boulevard and the branch is over private property. When Maintenance Takes Place Pruning typically take place from October 1st thorough March 31st. This is the most appropriate time of the year to trim trees to prevent infection through pruning wounds. During the remainder of the year trimming is limited to the removal of nuisance, broken or dead limbs and hazardous trees for public safety. Tree Removal The City will remove boulevard trees that are dead or dying, have a disease or infestation, pose a threat to public safety due to structural hazards or for work to install, expand or repair streets or utilities. Once a tree is removed from the boulevard the city will contract for removal of the stump and the re-seeding of any turf disturbed in the process. Removal and re-seeding is done at no charge to the property owner. In the event of a bad storm and a tree or branch(es), are a safety hazard or interfere with snow plowing or maintenance work, the city will contract for removal. Passed by the City Council September 18, 2018 561.04 TRESPASS; TREBLE DAMAGES. Whoever without lawful authority cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise injures any tree, timber, or shrub, on the land of another person, or in the street or highway in front of any person's house, city lot, or cultivated grounds, or on the commons or public grounds of any city or town, or in the street or highway in front thereof, is liable in a civil action to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, unless upon the trial it appears that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was the defendant's, or that of the person in whose service or by whose direction the act was done, in which case judgment shall be given for only the single damages assessed. This section shall not authorize the recovery of more than the just value of timber taken from uncultivated woodland for the repair of a public highway or bridge upon or adjoining the land. History: (9585) RL s 4449; 1973 c 123 art 5 s 7; 1986 c 444 Official Publication of the State of Minnesota Revisor of Statutes 561.04MINNESOTA STATUTES 20231 Treeƈ͓and͓MinneƈoƔa͓Laƴ͔ A͓Laƺperƈon͌ƈ͓GƜide͔͔ ͔ ͔ ͔ Damage͓Done͓Ɣo͓Treeƈ̨͓ConƈeqƜenceƈ͔ and͓CompenƈaƔion͔ ͔ GeƔ͓Mƺ͓DrifƔ̨͓Legal͓AƈpecƔƈ͓of͔ PeƈƔicide͓DrifƔ͔ ͔ HaǄard͓Treeƈ͓and͓Limbƈ͓on͓PriƳaƔe͔ ProperƔƺ͔ ͔ HaǄard͓Treeƈ͓and͓Limbƈ͓on͓PƜblic͔ ProperƔƺ͓and͓GoƳernmenƔal͓ImmƜniƔƺ͔ ͔ NƜiƈance͓Treeƈ̨͓Encroaching͓Brancheƈ͔ and͓Tree͓RooƔƈ͔ ͔ InƈƜrance͓CoƳerage͓and͓Damage͔ CaƜƈed͓bƺ͓Treeƈ͔͔ ͔ TreéƔrimming͓and͓UƔiliƔƺ͓Companieƈ͔ ͔ Knoƴing͓Too͓MƜch̨͓IƈƈƜeƈ͓aboƜƔ͓an͔ ArboriƈƔ͌ƈ͓LiabiliƔƺ͔ ͔ ͔ ͔ ͔ NoƔę͖͓These͓fact͓sheets͓pertain͓to͓the͓law͓in͓Minnesota͓at͓the͓time͓of͓their͓writing͓in͓the͓mid͔ ˠ000s̮͓The͓information͓they͓contain͓may͓not͓necessarily͓apply͓in͓other͓states̩͓and͓they͓have͓not͔ been͓updated͓since͓their͓initial͓publication̮͓The͓information͓included͓in͓the͓fact͓sheets͓is͔ intended͓to͓be͓educational̩͓not͓legal͓advice̮͓If͓you͓have͓a͓legal͓problem̩͓consult͓a͓lawyer̮͔ ͔ ͔ Β͓ˠ00˦̩͓Regents͓of͓the͓University͓of͓Minnesota̮͓University͓of͓Minnesota͓Extension͓is͓an͓equal͓opportunity͓educator͓and͔ employer̮͓In͓accordance͓with͓the͓Americans͓with͓Disabilities͓Act̩͓this͓publication̴material͓is͓available͓in͓alternative͓formats͔ upon͓request̮͓Direct͓requests͓to͓ˤ˟ˠ́ˤˠˢ́˟ˠˠˠ̮͔ ͔ Damage Done to Trees: Consequences and Compensation My neighbor cut down trees on my property. What are my legal rights? Cutting down a tree on another’s property without permission is trespass and carries a stiff penalty. A Minnesota statute provides that whoever intentionally cuts down a tree without the tree owner’s permission can be assessed three times (“treble”) the amount of monetary loss suffered by the tree owner.1 If the tree damage is unintentional, then the tree owner’s loss would not be tripled. In one Minnesota court case, a driver had a heart attack while at the wheel and crashed into a grove of spruce trees. The driver was responsible for the cost of the damaged trees, but he was not ordered to pay three times the cost, because the damage was caused accidentally.2 How will I be compensated for damaged or improperly removed trees? Try the direct approach first. Have a face-to-face discussion with your neighbor, the wrongdoer, and give him an opportunity to make an offer to compensate you for your loss. The reason to try to work it out is to avoid having to pay for lawyers, appraisers, and related legal costs. It may cost you more to prove the value of your trees than to recover your loss. If you simply cannot come to terms with your neighbor, you will likely have to go to court. You can sue in Small Claims Court (called “Conciliation Court”), if your loss is $7,500 or less. You should consult experts to establish the value of your tree or the decrease in your property value. How do I find experts? Start by calling a tree nursery or a tree-moving company (consult business directories). They can give you a value about the trees that they sell. If the tree diameter is greater than 3 inches, the nursery retailers will likely refer you to a tree appraiser. Professionals that appraise tree values or landscape damage usually charge $75 to $125 per hour for consultation time, driving time, and report-writing time. How is the dollar value of a tree determined? Tree-and landscape-appraisers use formulas to determine the dollar value of a tree. The factors that appraisers consider include the tree species, its size, its condition (health), its location/site, the tree’s functional and aesthetic attributes, and its placement in the landscape (e.g., a single, mature tree in a yard; a tree in a grove; or a tree under a power line). A construction contractor damaged or removed trees on my property. What are my legal rights? The leading Minnesota court case on this subject involves a church whose road 1 Minn. Stat. §541.04 2 Pluntz v. Farmington Ford-Mercury, Inc., 470 N.W. 2d 892 (Minn. App. 1991). DamageDoneToTrees FINAL: Consequences and Compensation 1 contractor piled soil over the roots of some trees on church property.3 The trees’ roots were smothered, and the trees died. The church sued the contractor. The trees in this case were ornamental, provided shade, and acted as a screen and sound barrier to nearby highway traffic. The church was compensated for the “reasonable and practical replacement cost” of the destroyed trees. An expert calculated the value, which included the retail cost of the replacement trees, planting costs, and tax. The replacement planting of trees would, over time, approximate the previous condition of the church’s site. If the trees had been small, ill-formed, and not particularly desirable as ornamental trees, their value would not be as great, and the way to determine the value of the loss would be the difference in the value of the real estate before and after the damage was done.4 Am I entitled to punitive damages? No. You cannot collect both treble damages and punitive damages for trespass to your trees.5 The purpose of punitive damages is to punish and deter conduct that is malicious or willfully indifferent to the rights of others.6 Treble damages are the equivalent of punitive damages. Are there any criminal penalties? A person who intentionally cuts down another’s tree without permission or damages property can be charged with criminal trespass or criminal damage to property.7 A city attorney or county attorney determines if criminal charges are warranted, and if so, prosecutes the case. The wrongdoer, if convicted, faces penalties ranging from paying a fine to imprisonment, depending on the value of the property destroyed. Disclaimer: The information included in this fact sheet is intended to be educational, not legal advice. If you have a legal problem and require legal advice, you should consult a lawyer. 3 Rector v. McCrossan, 235 N.W.2d 609 (1975) 4 Baillon v. Carl Bolander & Sons Co. 235 N.W.2d 613 (1975), 5 Johnson v. Jensen, 446 N.W.2d 664, 666 (Minn. 1989) 6 Minn. Stat. §549.20 7 Minn. Stat. §609.605, subd. 1(b)(5) and Minn. Stat. §609.595 DamageDoneToTrees FINAL: Consequences and Compensation 2 Get My Drift Legal Aspects of Pesticide Drift Every year, nearly 5 billion tons of pesticides are intentionally applied to the American landscape.1 Responsible pesticide use is critical to avoid adverse environmental impacts. At the neighbor-to-neighbor level, the issue can become contentious when pesticides drift from one neighbor’s yard to another. The following answers address homeowners’ most commonly asked questions about pesticide drift. 1. What is a pesticide? Federal law defines a pesticide as any substance intended for “preventing, destroying, repelling, or mitigating any pest,” and substances intended for use as a plant growth regulator, defoliant, or dessicant.2 The word-ending “cide” means “killer.” The term “pesticide” is a general term and includes insecticides (killer of insect pests), herbicides (weed control), fungicides (fungi control), rodenticides (mice/rat control), etc. 2. What is pesticide drift? Graphic: www.nda.agric.za Pesticide drift is the movement of pesticides through the air, away from the area where they were applied. It’s somewhat analogous to secondhand smoke. Cigarette smoke drifts away from the smoker and can be inhaled by nearby non- smokers as secondhand smoke. Similarly, a herbicide sprayed on a plant or tree can drift away from its target and land on non-targeted plants. Drift becomes a problem when the herbicide or other pesticide has an unintended impact or causes damage. An example is 2,4-D, a herbicide used to control dandelions and other broadleaf weeds. Some lawn-care products (e.g., Ortho Weed-B-Gon and Scotts Turf Builder with Plus 2 Weed Control) contain 2,4-D. The granular form of 2,4-D can turn into a gas and drift away from the place where it was applied, harming plants sensitive to 2-4-D, like grapes, tomatoes, and lilacs.3 3. How can pesticide drift be prevented? Preventing spray drift is the responsibility of the person applying the pesticides. (Applicators include private citizens, farmer/growers, commercial applicators, and non-commercial applicators.) Using common sense is the best means of prevention. Mix and apply pesticides only when winds are calm (less than 10 mph). Most important, read the label on the pesticide before using it, and follow the directions. The label is the law. All of the label directions are the legal requirements for using the pesticide safely and effectively. Pesticides must be applied correctly to avoid collateral damage. Pesticide labels are not an easy read; they take some time to review and understand. But it’s time well spent … to use pesticides responsibly and to stay on the right side of the law. Pesticide labels can be found the internet, if the label attached to the product is hard to read.4 Pesticides can be used only on the sites, plants, or crops listed on the label. The label also specifies the application rate and method, storage and disposal information, protective clothing to wear while using the pesticide, and environmental hazards (e.g., “toxic to bees”). 4. Will the vegetables and fruits in my garden be safe to eat? 1 Timothy Kiely, David Donaldson & Arthur Grube, Ph.D., Pesticide Industry Sales and Usage: 2000 and 2001 Market Estimates, at 10 (Biological and Economic Analysis Division, Office of Pesticide Programs, Office of Prevention, Pesticides, and Toxic Substances, U.S. Environmental Protection Agency, May 2004.). 2 See 7 U.S.C. § 136 (u) 3 Herzfeld, D, B. Jarvis, The Considerate Gardener’s Guide to Pesticides, Part 2. Yard & Garden Line News, September 1, 2003. http://www.extension.umn.edu/yardandgarden/YGLN-Sept0103.html Get My Drift: legal aspects of pesticide drift 1 4 See, for example: http://www.cdms.net/manuf/default.asp. If a pesticide that drifts onto your vegetables or fruit is not labeled for use on vegetables or fruit, do not eat them. Pesticides that are labeled as safe to use on particular vegetables and fruits identify “safe” levels of pesticide residue for the food-plants listed on the label. But there is no sure way to know if a pesticide labeled for use on a non-food plant has a “safe” level of pesticide residue for a non-target plant. For example, a lawn herbicide can be used on turf, but the label does not identify a safe level of herbicide residue on fruits and vegetables, because they are non-target plants. If you are uncertain, don’t eat the affected fruit and vegetables. 5. What can I do if my neighbor uses a pesticide that damages my plants or property? In Minnesota, it is illegal to apply a pesticide that strays onto the adjacent property and causes damage. 5 In fact, pesticide drift is illegal even if there is no damage. “A person may not direct a pesticide onto property beyond the boundaries of the target site,” according to the law.6 “My experience has taught me that by far the best way to resolve or prevent drift disputes is for the two parties to discuss the situation as adults in an open and respectful manner.” Associate Professor Dean Herzfeld, coordinator of the Pesticide Applicator Training Program in Minnesota. Taking your case to court for the loss of garden plants is not a good option. Most of the cases that have ended up in court involve aerial spraying of acreage (crops or forests) and significant monetary losses. The “garden variety” dispute between neighbors is usually not taken through the trial and appeal process, because of the financial realities of paying for lawyers, expert witnesses, scientific analysis, and other litigation costs. The challenge is proving what pesticide did the damage and the connection between the pesticide that drifted off-target and the damage done. Scientific analysis for pesticide residue is costly (usually several hundred dollars.) The University of Minnesota Extension Service no longer has a clinic or other means to diagnose pesticide drift or herbicide damage in home landscapes. The Minnesota Department of Agriculture (MDA) oversees pesticide use in the state. But the MDA investigates complaints only when it suspects that there is a violation of the law. Priority is given to investigations involving injury/damage to humans, animals, food/feed products, and the environment. The MDA receives complaints at 651-296- 6121. The complaint process is explained online at http://www.mda.state.mn.us/appd/pesticides/complaints.htm. The recommended option is to try the neighborly approach. “My experience has taught me that by far the best way to resolve or prevent drift disputes is for the two parties to discuss the situation as adults in an open and respectful manner,” maintains Dean Herzfeld, a University of Minnesota Associate Professor and Extension Educator in the Plant Pathology Department, and the Coordinator for the Pesticide Applicator Training Program in Minnesota. Speak to your neighbors in a friendly, tactful way and explain your concerns about the impact that their pesticide use has had on you, your health, your garden, or your pets. Try to negotiate a solution that satisfies both of you. Find out what pest problems your neighbors are having and provide constructive information about nontoxic, pest-control methods. For instance, if your neighbors use a product containing 2,4-D to control dandelions and it drifts onto your tomato plants, you could provide information about corn gluten meal, an organic alternative for control of dandelions and other broadleaf weeds.7 Take a tip from the experts: Use the neighborly approach to deal with your drift disputes and preserve harmony in your neighborhood. Disclaimer: The information included in this fact sheet is intended to be educational., not legal ad vice. If you have a legal problem, you should consult a lawyer. 5 “A person may not apply a pesticide resulting in damage to adjacent property.” Minnesota Statutes §18B.07, Subd. 2.3 (b). 6 Id. Get My Drift: legal aspects of pesticide drift 2 7 U of MN information on corn gluten meal: http://www.extension.umn.edu/extensionnews/2004/gluten.html Hazard Trees and Limbs on Private Property What is a “hazard tree? A hazard tree is a tree with a defect, plus a target. An example is a dead tree branch (a hazard) by a house (the target). How can I identify a hazard tree? Examples of obvious defects include a dead tree limb, the unseasonable lack of leaves, visible decay, a hole or crack in the trunk, or a tree leaning dangerously to one side.1 Trees with obvious defects can become problems, because they can fail and cause property damage or human injury. Who is responsible for damage caused by a hazard tree? A tree owner is generally responsible for damage caused by a hazard tree. A tree owner is not expected to be a tree expert, but s/he is expected to recognize obvious symptoms of a problem. The reason for concern is that pre-existing defects can predispose a tree to failure. However, some defects are not obvious to the non-expert. If the defect is not obvious, the tree owner probably will not be held responsible if the tree fails. If your neighbor’s tree falls and injures you or your property, your neighbor is responsible for the damage done IF the tree defect was obvious and the neighbor failed to correct the problem. However, if the tree defect was not evident, then your neighbor will likely not be responsible for the damage. The reason is that your neighbor cannot be held legally responsible for a problem of which he had no notice or opportunity to fix. If there is a question about the tree’s condition, consult a tree-care expert. Look for a “certified arborist” in the Yellow Pages under “tree companies.” Some communities hire tree inspectors who are trained to identify hazard trees and diseased trees in both public spaces and private yards. What can I do if I disagree with a tree inspector about the condition of my tree? If a tree inspector or housing inspector has condemned your tree as a hazard tree or diseased, you can ask the inspector to identify the defect and explain why it is a hazard. If you disagree, contact a certified arborist and get a second opinion. If the arborist agrees that the tree inspector made an error about your tree’s condition, give the tree inspector a copy of your arborist’s written opinion. In the case of diseased trees, a lab test can be done to confirm the presence of a disease. What should I do if my neighbor doesn’t deal with a hazard tree that threatens my property? Talk to your neighbor! Ask her to view the situation as you see it from your side of the boundary line. Ask her to fix the problem. You’re putting the neighbor on notice that a defect exists. Write a letter to your neighbor, describing the problem (make sure that you keep a copy). Document the problem with photos. Consult a tree-care expert, an arborist. 1 For photographic examples of hazard trees, please see the U.S.D.A. Forest Service’s Hazard Tree web page: http://www.na.fs.fed.us/spfo/hazard/index.htm. Hazard Trees and Limbs on Private Property 1 Hazard Trees and Limbs on Private Property 2 Try mediation. As a last resort, you can sue. Small-claims court deals with claimed losses up to $7,500. Can I go onto my neighbor’s property to cut down a hazard tree or limb? No! Cutting down a tree on another person’s property without permission is trespass and carries a stiff penalty. In Minnesota, whoever intentionally cuts down a tree without the owner’s permission can be assessed three times (“treble”) the amount of monetary loss suffered by the tree owner. 2 Tip: Don’t engage in stealth tree-cutting when your neighbor has gone on vacation. You’re setting yourself up to pay three times your neighbor’s loss. Who is responsible for cleaning up fallen branches or a fallen tree? If your neighbor’s tree or branches have fallen into your yard, they have become a nuisance 3 , preventing you from the comfortable use and enjoyment of your property. Your neighbor has an obligation to “abate” or remove the nuisance, regardless of whether your neighbor knew that his/her tree had an obvious defect. When can my neighbor claim that the tree failed because of an act of God? An act of God is a force of nature that is both the sole cause of damage and unexpected or unforeseeable. For example, a tree downed by lightning is an act of God, if lightning is the sole cause of the tree’s falling and if the tree did not already have an obvious defect. Your neighbor is not responsible if the tree’s failure is solely caused by act of God. However, if the tree had an obvious defect before the tree fell during a windstorm, then the “act of God” defense will not shield your neighbor from responsibility. What role does insurance play? Bear in mind that insurance is a contract between you and your insurance company. Your insurance company can issue you a check, but cannot give you legal advice about your liability with respect to your neighbor. If your neighbor sues you, YOU are the one in court, not your insurance company. Talk to a lawyer about your legal responsibilities, not your insurance agent. There are two basic types of insurance: casualty-loss insurance and liability insurance. Casualty insurance covers the loss you have suffered from fire, theft, hail, vandalism, and other calamities. It is often subject to a cap, such as $500 for removal of tree debris. Liability insurance covers a loss suffered by someone else, for which you can be held legally responsible. For example, if someone slips on your icy steps and breaks his neck, your insurance policy provides coverage. Where should I go to seek legal help, if needed or if the neighborly approach doesn’t work? Look in the Yellow Pages under “Attorneys/Real Estate or Real Property Law.” Also, look in the Gray Pages of the phone directory for Lawyer Referral and Information Service. This service’s attorneys often provide a half-hour free consultation to people referred to them. Disclaimer: The information included in this fact sheet is intended to be educational, not legal advice. If you have a legal problem and require legal advice, you should consult a lawyer. 2 Minn. Stat. §561.04 3 “Anything which is …an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.” Minnesota Statute §561.01 Hazard Trees and Limbs on Public Property and Governmental Immunity A Legal Perspective of Community Tree-risk Management What is a “hazard tree? A hazard tree is a tree with a defect, plus a target. An example is a rotten tree (a hazard) near a picnic table (the target). Trees with obvious defects can become problems, because they are likely to fail and cause property damage or human injury. Obvious tree defects include a dead tree limb, the unseasonable lack of leaves, visible decay, a hole or crack in the trunk, or a tree leaning dangerously to one side.1 What does “duty to use reasonable care” mean? Every landowner has a duty to use reasonable care to manage his/her property in a way that does not cause harm to others or their property. Using reasonable care means to consider the foreseeable risks. With respect to trees, the duty is to make sure that unsound or “hazard” trees on one’s property do not fall onto adjoining property or into public rights- of-way. For municipalities, the duty encompasses at least a duty to make periodic visual inspections of trees on public property. The inspections should be done by qualified people, e.g., certified tree inspectors. There is also a duty to eliminate obvious dangers and do preventive maintenance. The municipality may be held liable for foreseeable harm that could have been prevented. In a Minnesota court case, a 10-year-old boy ran across a grassy area on Ramsey County land towards his father’s car and was struck in the eye by a low-hanging branch. None of the branches extended over sidewalks or paths. The boy took a shortcut across the lawn, instead of using the sidewalk. The grounds superintendent testified that he never anticipated that the tree would pose a safety risk, because it was not near a sidewalk. In this case, the court ruled that Ramsey County was not negligent. The tree was in plain view, and the County had no notice that the tree posed an unreasonable risk to the public. The duty to use reasonable care does not extend to cases where the risk of harm is known or obvious to the visitor. The risk of harm from running into a tree branch is obvious, even to a child. The county was not obligated to make its landscapes “child-proof.”2 What is a municipality’s tree inspector expected to know about hazard trees? Certified tree inspectors should be trained to identify hazard trees and certain types of tree diseases. In order to maintain their certification, they must have refresher courses. At a minimum, a tree inspector’s duty to inspect includes the ability to identify obvious tree defects. If the tree inspector finds a defect, s/he should follow the municipality’s policy about addressing hazard trees. 1 For photographic examples of hazard trees, please see the U.S.D.A. Forest Service’s Hazard Tree web page: http://www.na.fs.fed.us/spfo/hazard/index.htm. 2 Sperr v. Ramsey County, 429 N.W.2d 315 (Minn. App. 1988). [Hazard Trees and Limbs on Public Property and Governmental Immunity] What is “governmental immunity” and when does it apply? A Minnesota state law provides that a municipality can be held liable for the negligence of its officers, agents, and employees, subject to specified dollar limits.3 In a few limited circumstances, governmental entities (cities, townships, counties, etc.) are “immune” from negligence claims. Immunity is based on the separation of powers and is intended to prevent judges from second-guessing executive and legislative policy-making decisions. The trial judge decides if the governmental entity is entitled to immunity. In analyzing the claim for immunity, the trial judge identifies the type of governmental conduct that is being challenged. 4 Only conduct of a policy-making (also called “discretionary”) nature is entitled to immunity. “Policy-making” involves the balancing of social, political, safety, legal, or economic considerations.5 Conduct that implements policy – rather than makes policy – is not entitled to immunity; conduct at the planning level is protected, while conduct at the operational level is not protected.6 A city’s policy to trim trees along high-traffic roads before trimming trees on low-traffic roads is an example of an action that gives the city immunity. In determining where or how to trim trees along roadways, the city has to make choices based on its budget and the number of workers it has. This type of decision- making involves using discretion and setting policy. By contrast, the city would not be entitled to immunity if the workers it assigned to trim the trees did a negligent job that caused injury. Day-to-day operations or “ministerial actions” are not protected by governmental immunity,7 and tree-trimming itself does not involve policy-making or using discretion. Basically, the court does not want to second-guess how city policy-makers prioritize resources, but the court will get involved if a government worker carries out day-to-day work in a negligent way. In a 1998 court case in Minnesota, a large oak tree fell on a motorist during a severe thunderstorm. The fallen tree showed signs of decay. The city tree inspector had inspected the tree a few months earlier. The court found that the inspector failed to notice obvious signs of internal decay through a pruning wound that had a visible opening into a tree cavity. The city was held liable for the injury to the motorist.8 Because the tree inspector’s job required him to inspect trees regularly in his day-to-day routine and his decision required no planning or policy formulation, government immunity did not shield the city from liability. What constitutes an “act of God”? An act of God is a force of nature that is both the sole cause of damage and unexpected or unforeseeable. For example, a tree downed by lightning is an act of God, if lightning is the sole cause of the tree’s falling and if the tree did not already have an obvious defect.9 The tree owner is not responsible if the tree’s failure is solely caused by act of God. However, if the tree had an obvious defect before the tree fell during a windstorm, then the “act of God” defense would not shield the tree owner from responsibility. Many tree failures are the result of a combination of factors, both mortal and divine. What is the duty of care with respect to trees that block intersections? 3 Minn. Stat. §466.02 and §466.04 (1996) in the Minnesota Tort Claims Act 4 Angell v. Hennepin County Reg’l Rail Auth., 578 N.W.2d 343, 346-47 (Minn. 1998). 5 Nusbaum v. Blue Earth County, 422 N.W.2d 38, 43-44 (Minn. App. 1992). 6 McEwen v. Burlington N. R.R. Co., 494 N.W.2d 313, 316-17, (Minn. App. 1993), review denied (Minn. Feb. 25, 1993). 7 There is a three-prong test for determining immunity: 1) Government policy controls the conduct of the employee; 2) The government exercised its discretion in adopting the policy; and 3) The employee is not negligent in carrying out the policy. 8 Elfstrand v. City of Brooklyn Center, unpublished opinion, C1-98-1029 (Minn. App. 1998) 9 VandenBroucke v. Lyon County, 301 Minn. 300, 222 N.W.2d 792 (1974). [Hazard Trees and Limbs on Public Property and Governmental Immunity] The following Minnesota court case provides a good example of a city’s duty of care with respect to tree- trimming in intersections: A young passenger in a car was killed when hit by a truck in an uncontrolled, T-shaped intersection in a residential area. Tree branches on private property may have obscured the drivers’ views. The city has a zoning ordinance that requires property owners to keep tree limbs to be at least 8 feet about grade within the public right-of-way. The limbs in question were not within the sight-triangle area. The city trims trees located within the corner sight triangles for traffic visibility. The city also trims trees outside the sight triangles, but usually only if needed to protect the city’s mowing and snow-plowing equipment, if the tree is dead, if the tree interferes with pedestrian or bicycle traffic, or if the tree interferes with a street light. The city does not routinely monitor or trim trees outside sight triangles, but may do so if the need is brought to its attention. Prior to the accident, the city had not received any complaints about the tree. In this case, the city was not liable (i.e., it had immunity).10 The city had adopted a policy about tree trimming: the city did not have resources to trim all of the trees it would have liked; the city gave priority to trimming in sight triangles, instead of trimming outside of sight triangles; and the city considered the desires of private property owners with respect to trimming privately owned trees by the right-of-way. The city’s zoning ordinance left the city room for discretion about how to enforce it. The city exercised its discretion, based on numerous policy considerations and determined that it would not trim trees outside of sight triangles for traffic visibility, unless the tree was brought to its attention as a dangerous condition. Because the city followed its tree-trimming policy, it was immune from liability. What should a municipality do to limit its risk? A municipality should develop a risk-reduction policy, review and update the policy regularly, and follow it. Conduct a tree inventory. Establish priorities for maintenance and monitoring. Inspect public trees on a regular basis and document the inspections. Fix what you find: eliminate hazards. Act ethically. Don’t rely on government immunity as a defense; use your good judgment. Is there a difference between trees in rural areas and trees in urban areas? The distinction between rural trees and urban trees is increasingly blurred as urban areas sprawl out into “rural” and suburban areas and as traffic increases in those areas. In urban areas, property owners have a duty to inspect and will be liable for failing to correct defects or remove an unsound tree. The “rural rule” is that the property owner in rural wooded areas does not have a duty to inspect to make sure that every tree is safe and will not fall over onto a public road. However, if the property owner has actual knowledge that a tree is dangerous, s/he will be held liable if s/he fails to take care of the problem tree. The rationale for this rule is that a rural property owner would have an impractical burden of examining each tree on acres of wooded areas that border roads, compared to the urban property owner’s burden of having to inspect only one or a few trees. The risk of harm is balanced against the property owner’s burden of inspection. Minnesota currently follows the ‘rural rule.”11 However, the appellate courts have not visited this issue since 1921. Courts in other jurisdictions are divided between the rural rule and the urban rule. Disclaimer: The information included in this fact sheet is intended to be educational, not legal advice. If you have a legal problem and require legal advice, you should consult a lawyer. 10 Soltis-McNeal v. Erickson and the City of White Bear Lake, unpublished opinion, No. C3-97-11370 (Minn. App. 1997). 11 Zacharias v. Nesbitt et al. , 150 Minn. 369, 185 N.W. 295 (1921). [Hazard Trees and Limbs on Public Property and Governmental Immunity] Nuisance Trees: Encroaching Branches and Tree Roots Tensions mount when a boundary tree becomes a nuisance to a neighbor on one side of the boundary and not the other. The best advice is to try to work out the problem in a neighborly way, instead of taking your case to court. This fact sheet answers some of the most common legal questions about trees that have become a nuisance, based on the law in Minnesota. Watch for “Tips” as you read. What is a nuisance tree? A Minnesota statute defines a nuisance as follows: “Anything which is … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.”1 In the context of neighbors and their trees, the branches from your neighbor’s tree that rub against your roof or the roots that push up your sidewalk are considered a nuisance. What about your neighbor’s tree that leans far into your yard and prevents your use of a corner of your yard? If that tree interferes with the free use and enjoyment of your own property, then the tree has become a nuisance. What is a boundary tree? Courts sometimes use a more complex definition,2 but for most purposes, a boundary tree is one that is either planted on the boundary line between two lots or a tree whose branches, trunk, or roots have crossed a boundary. Who owns a boundary tree? Generally, the location of the trunk determines who owns the tree. A tree trunk that stands solely in your yard is your tree. As the tree owner, you can decide to coddle your tree or cut it down, even if your neighbor protest that removing your tree will expose his once-shaded patio to the blazing sun. Tip: If you and your neighbor are co-owners of a true boundary-line tree, then you cannot cut down the tree without your neighbor’s consent, and vice-versa. You and your neighbor share the tree-care expenses and responsibilities equally. How do I determine where the boundary line is? A survey is the best way to determine the boundary lines of a lot. Look for surveyor stakes or boundary markers. A plat map and legal descriptions help, too. Often neighbors know where the boundary is between their lots. Tip: Talk to your neighbor, if you have any doubt about the location of the boundary line. What can I do if the roots or branches from my neighbor’s tree encroach into my yard? If the roots or branches have encroached into your yard and become a nuisance, you have the right to fix or “abate” the nuisance, but there are limits. Here are some guidelines: x Trim overhanging branches up to the boundary line – at your own expense. This right is called “self-help.” [See “What is self-help?” below] x Trim, but don’t harm the health of the tree or destroy it. For example, cutting off too much of the canopy could jeopardize the tree’s capacity to photosynthesize. Cutting too much of the root system could cause the tree to become unstable and topple over. And pruning an oak between April and September could make the tree vulnerable to oak wilt, a fatal disease. It doesn’t matter that the tree may look funny after trimming it. The 1 Minn. Stat. §561.01 Nuisance Trees: Encroaching Branches and Tree Roots 1 2 See, e.g., Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (1969). Nuisance Trees: Encroaching Branches and Tree Roots 2 courts look at whether or not you are harming the tree’s health. If you don’t know what may harm a tree, consult a tree expert before cutting. x To find a tree expert or ‘arborist,” look in the Yellow Pages under ‘tree service,” look for the arborist’s membership in professional organizations, such as the Minnesota Society of Arboriculture (MSA), the International Society of Arboriculture (ISA), or the National Arborist Association (NAA) . x Don’t trespass onto your neighbor’s property to trim a tree or shrub. And technically, that means don’t even lean over the property line to make the pruning cut, unless you have the neighbor’s consent. x Don’t cut down a tree whose trunk is on the boundary line, unless you have the express consent of the owner on the other side of the boundary line. x Tip: Chat before you chop. Even though you are not legally obligated to do so, talk to your neighbor before you do major trimming on your neighbor’s tree. It’s the neighborly thing to do. What is self-help? Property owners in every state have the right to trim the branches or roots of a neighbor’s tree that encroach onto their property, up to the property line, at their own expense. This right is called “self-help.” Self-help is an alterative to going to court. The rationale is that self-help prevents the wasteful use of the court system to resolve comparatively minor disputes. It’s a trade-off: you have the right to cut and remove the encroaching branches or roots of your neighbor’s tree, right away, at your own expense (i.e., use self-help), instead of having to hire a lawyer, start a lawsuit, and wait for the courts to sort it out. Using self-help saves you time and money, and keeps the courts from settling disputes between neighbors. In Minnesota, you have the option of using self-help OR going to court, when using self-help is not practical or reasonable. In most other states, self-help is the exclusive remedy. What are the consequences of trespassing to cut down my neighbor’s tree? Cutting down a tree on another person’s property without permission is trespass and carried a stiff penalty. In Minnesota, whoever intentionally cuts down a tree without the owner’s permission can be assessed three times (“treble”) the amount of monetary loss suffered by the tree owner. 3 Tip: Don’t engage in stealth tree-cutting when your neighbor has gone on vacation. You’re setting yourself up to pay three times your neighbor’s loss. What can I do about leaves, twigs, sap, fruit, and other debris from my neighbor’s tree? Leaves, twigs, sap, acorns, etc., are naturally occurring tree debris and do not generally constitute a nuisance. There are no court cases in Minnesota that directly deal with this issue. However, courts in other states have recognized that tree owners are liable for “sensible damage” caused by their trees, such as a damaged roof, but not mere debris from a healthy tree. Going to court to have a neighbor ordered to pick up fallen debris is not practical or economical. Who owns the fruit on the branches of my neighbor’s tree that hang into my yard? The rule of thumb is that the fruit on the overhanging branches belongs to the tree owner. Picking the fruit may not be so simple. Ownership of the fruit does not give your neighbor any right to trespass onto your property to pick the fruit. The law in Minnesota on this subject is not clear cut. Courts would probably weigh your right to keep trespassers out of your yard against the owner’s right to harvest the fruit. The balance may tip in favor of your neighbor, if she owns an orchard and depends on the fruit for her livelihood. The law is also unclear on the issue of 3 Minn. Stat. §561.04 Nuisance Trees: Encroaching Branches and Tree Roots 3 fallen fruit. Once it has fallen, the fruit’s value diminishes. It has become, for all practical purposes, “tree debris.” You should be able to use or dispose of the fruit, if your neighbor says nothing about wanting it. Help! My neighbor cut down her tree … and took the shade in my back yard with it. What recourse do I have? None. If the tree trunk was in your neighbor’s yard, it’s her tree. She has the right to cut it down, even for the heck of it, and even it doing so exposes your prize-winning hosta garden to all-day sun. What is the best way to resolve disputes about trees between neighbors? The best approach is to try to work out the dispute with your neighbor. Where should I go to seek legal help, if needed or if the neighborly approach doesn’t work? Look in the Yellow Pages under “Attorneys/Real Estate or Real Property Law.” Also, look in the Gray Pages of the phone directory for Lawyer Referral and Information Service. This service’s attorneys often provide a half-hour free consultation to people referred to them. Disclaimer: The information included in this fact sheet is intended to be educational, not legal advice. If you have a legal problem and require legal advice, you should consult a lawyer. Insurance Coverage and Damage Caused by Trees When a tree limb falls off or a tree is blown over and causes damage, you have three options: file an insurance claim, take an income tax deduction for a casualty loss1 , or file a lawsuit seeking compensation for the loss.2 This fact sheet deals with insurance. What does insurance cover? Most insurance covers two things: damage that you experience (casualty) and damage for which you are responsible (liability). What is casualty insurance and what does it cover? When it comes to residential landscape plants (trees, shrubs, lawns, etc.), casualty insurance generally covers losses caused by fire, lightning, theft, hail, vandalism, or other calamities. Landscape losses caused by wind, a tornado, or hurricane may not be covered, except to cover the cost to remove a fallen tree from a house or other structure and have the tree debris hauled away. The insurance policy often puts a cap on this type of loss. For example, the insurer may agree only to pay up to $500 for the removal of the debris from a tree that has fallen. Check your insurance policy for the details of your coverage. What if my insurance does not cover the loss? The general rule is that losses not compensated by insurance or other means can be deducted as a casualty loss on a person’s federal income taxes.3 The Internal Revenue Service defines a casualty loss as “the damage, destruction, or loss of property resulting from an identifiable event that is sudden, unexpected, or unusual.” If the loss is caused by progressive deterioration, the loss does not qualify. Landscape plants (trees, shrubs, and other plants) that are damaged or destroyed by a disease, termites, or other insect pests generally do not qualify as a casualty loss, because the damage is progressive rather than sudden. If, however, the cause is unexpected and unusual, the Tax Court has allowed a tax deduction. In one instance, the Tax Court found that that a black oak tree attacked by two-lined chestnut borer insect died suddenly – within a few weeks – and constituted a casualty loss.4 The taxpayers in that case were allowed to deduct the amount of the diminished value of their property resulting from the loss of the tree. By contrast, termite damage does not qualify as a casualty loss, because it is not sudden.5 1 IRS Publication 547, entitled Casualties, Disasters, and Thefts.” See also, 26 U.S.C. 165(c)(3). 2 Guide for Plant Appraisal, 8th Edition, Savoy, IL: International Society of Arboriculture (1992). 3 Internal Revenue Code, Section 165. 4 McKean v. Commissioner, T.C. Memo 1981-670, 42 T.M.C. (CCH) 1709 (1981). 5 Rev. Rul. 63-232. Insurance Coverage and Damage Caused by Trees 1 What is liability insurance and what does it cover? Liability insurance covers loss or damage suffered by someone else for which you can be held legally responsible. For example, if a guest slips and injures herself on your home’s ice-covered steps, you could be held responsible (liable) for the injury that your guest suffered. Does insurance determine who is responsible for losses caused by failed trees? No. A common misconception, even among insurance professionals, is that insurance coverage determines liability. Responsibility for damages (liability) is determined by legislatures enacting laws or by courts deciding cases. An insurance policy is simply a contract to reimburse an individual for losses suffered or caused. For example, if you have a tree in your yard that you know presents a hazard, you will be liable under the law for damage that your tree causes when it falls on a passerby or on your neighbor’s property. Insurance may cover all or portions of the loss, regardless of who is responsible or liable under the law. Your neighbor’s casualty insurance may pay for the damage to his property caused by your tree. If the person who is hurt by the falling tree has a medical insurance policy, that policy will pay for medical treatment. Since you are liable for all of the damages, your liability insurance will likely cover most, if not all, of the losses. Often people rely on insurance to cover their losses, without considering who is legally responsible. However, there are always limitations on what insurance companies pay. If you have legal liability, you will be responsible to pay what insurance does not cover. What should I do if my property is damaged by my neighbor’s fallen tree, and my neighbor insists that I can recover only from my own insurance company? If you have questions about your liability, you should contact a lawyer and not simply take the word of an insurance agent. After all, if you get sued, it will be you – not your insurance agent – who has to go to court, attend depositions, take the witness stand, and endure all of the stresses that accompany litigation. Courts decide disputes based on the law, not on insurance coverage. Disclaimer: The information included in this fact sheet is intended to be educational, not legal advice. If you have a legal problem and require legal advice, you should consult a lawyer. Insurance Coverage and Damage Caused by Trees 2 Tree-trimming and Utility Companies 1 Tree-trimming and Utility Companies What is a utility easement? An easement is the right to use part of another’s property for a particular reason. Utility companies have easements across strips of land in order to construct and maintain overhead or underground power lines. The property owner owns the land, but the utility company has a right to enter the strip of land designated as a utility easement . Tree limbs can break during storms and take down power lines. The utility easement allows utility companies to trim trees and branches near power lines to avoid power outages. Xcel Energy, for example, spends more than $20 million on its year-round tree-trimming program in the upper Midwest, trimming trees along more than 8,500 miles of power lines to assist in its efforts to provide reliable and safe electric service.1 What rights does a utility company have to trim trees in my yard or next to my property? Courts recognize the right of utility companies to trim or remove trees within their easement, as long as the work is reasonable and necessary to construct, use, operate, or maintain power lines in the easement area. The ut ility company tries to remove power- line obstructions in a way that minimizes damage to the property the power lines cross. A common complaint is that utility-pruning can be unsightly. Tall trees are somet imes pruned to remove the inner branches that touch power lines, result ing in a deep v-shape in the tree’s crown. The power line goes through the v-shaped area. Even if the result is not aesthetically pleasing, however, the pruning is balanced, and the tree can survive. Can I object to the removal a tree in a utility easement? In a recent court case,2 the Minnesota Supreme Court confirmed that property owners have an interest in the trees on city land in front of their property and standing to sue the utility company that removed a boulevard tree. So, you can object to the tree’s removal. However, the Court also said that your right to object is subordinate to a utilit y company’s right to trim or remove trees to keep power lines clear. The utility company can remove a tree “if the removal was reasonable and necessary to construct, use, operate, or maintain its power lines.”3 What should I do if the tree on my property is touching a power line? An electrical power company will respond to emergency requests to trim trees or limbs that interfere with power lines or pose a safety hazard. However, electrical power companies will generally not trim trees along power lines from ut ility poles to houses, unless there is a safety hazard. The power company will de-energize power lines if their customers hire professional tree-service contractors to trim the tree limbs. Call Xcel Energy’s 24-hour customer service line at 1-800-895-4999 to schedule an appo intment for de-energizing the line to your house. 1 www.xcelenergy.com 2 Miller-Lagro v. Northern States Power Company, 582 N.W.2d 550 (Minn. 1998) 3 Id. at 552. Tree-trimming and Utility Companies 2 Can I plant a tree near power lines? Before planting a tree in your yard, look up. Are there utility lines overhead or close by? If so, select a variety of tree that will not grow so tall that it will touch utility lines, or the power company may insist on its removal. Or find a location in your yard without overhead utility lines. In either case, do a little research about the tree you want and find out how tall and wide the tree will be at its maturity. A good resource is “The Right Tree” brochure.4 Also, remember to call Gopher State One (1-800-252-1166 or 651-454- 0002) at least three working days before you dig, to find out where buried ut ility lines are located in your yard. My tree fell and took down a power line. Am I responsible for my neighbors’ losses as a result of the power outage? When is the utility company liable? You are not responsible for your neighbors’ losses unless you had a special relationship with them5. In law, this relationship is called a “duty.” A duty can be intentionally created, such as when you invite someone on to your property or agree to be the caretaker of another’s property. A duty can also be created by circumstances, like a duty to eliminate a danger, such as a rotten tree on your property that could fall onto an abutting busy city sidewalk. However, if there is no duty, there is no liability for negligence. An example that illustrates this duty is a court case involving a power outage that resulted in the death of a number of pigs on a hog farm6. In that case, the limbs of a willow tree fell onto a power line and caused a power outage. The tree-owner’s neighbor operated a hog farm. The power outage left the hog farmer’s barn without vent ilation, result ing in the death of many pigs. The hog farmer sued his neighbor and the power company. The court ruled that the tree-owner had no duty to protect the hog farmer, because there was no special relationship where the hog farmer had entrusted his safety to the tree-owner. The court also ruled that the power company was not liable to the hog farmer. The power company had a Rate Tariff which provided that the company would not be responsible for any lo ss or damage caused by a power outage unless the company had co mmitted gross negligence, which is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected.”7 To avoid potential conflicts with neighbors or utility companies, manage your trees in a responsible way: plant the right tree in the right place, and hire an arborist to remove hazardous limbs before they cause liability issues. 4 The Right Tree is a free brochure available by calling Xcel Energy at 1-800-895-4999. It is also available online at www.mnpower.com/treebook/. 5 See, e.g., Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn. 1995). Examples of special relationships include trains or buses and their passengers; innkeepers and their lodgers, etc. 6Timmerman v.Manguson v. Northern States Power Company, an unpublished opinion of the Minnesota Court of Appeals, C6-95-2565, May 21,1996. 7 State.v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946), quoting Altman v. Aronson, 121 N.E. 505, 506 (1919). Knowing Too Much: Does your advanced tree-care training make you a 24/7 Good Samaritan? Tree-care professionals with training in risk assessment or the Electrical Hazards Awareness Program (EHAP) are sometimes concerned that they may be responsible for not taking action when they observe a tree hazard. Some feel that their advanced training has made them round-the-clock Good Samaritans with respect to every piece of property they enter, regardless of the reason for entry. Breathe a bit easier and read on. A Good Samaritan is an individual who, out of the kindness of his heart, assists others who are downtrodden or injured.1 The first Good Samaritan statute was passed in 1959 in California. Since then, every state has enacted some form of the law. The purpose of Good Samaritan laws is to encourage prompt, voluntary assistance in emergencies and to remove the fear of liability for trying to help. A classic case of an emergency is coming upon a roadside personal-injury crash scene. In Minnesota, there are two parts to the Good Samaritan law. First, Minnesota’s Good Samaritan law provides immunity from liability to a person who gives reasonable assistance at the scene of an emergency. 2 If the injured person is unintentionally harmed by your attempts to help and sues you, the Good Samaritan law protects you from liability and payment of monetary damages. Second, Minnesota is one of only three states (Rhode Island and Vermont are the other two) that have created a statutory duty to render assistance to a person who is exposed to or has suffered grave physical harm at the scene of an emergency.3 For example, if you come upon a person injured in a car crash, you have a duty to do something to help. It can be as simple as calling 911 for an ambulance. What does this mean for tree-care professionals? The immunity part of the Good Samaritan law “does not apply to a person rendering emergency care, advice, or assistance during the course of regular employment, and receiving compensation or expecting to receive compensation for rendering the care, advice, or assistance.”4 If you respond to a tree emergency in the course of your employment, follow the risk-assessment procedures and policies of your employer. If you are sued for negligence, you may have other defenses, but the Good Samaritan shield does not apply, because you are on the job. 1 Gust v. Minn. Dep’t of Natural Res., 486 N.W.2d 7 (Minn. App. 1992) 2 Minn. Stat. §604A, subd. 2 (a), provides: “A person who, without compensation or the expectation of compensation, renders emergency care, advice, or assistance at the scene of an emergency or during transit to a location where professional medical care can be rendered, is not liable for any civil damages as a result of acts or omissions by that person in rendering the emergency care, advice, or assistance, unless that person acts in a willful and wanton or reckless manner in providing the care, advice, or assistance. This subdivision does not apply to a person rendering emergency care, advice, or assistance during the course of regular employment, and receiving compensation or expecting to receive compensation for rendering the care, advice, or assistance.” 3 Minn. Stat. §604A.01, subd. 1, provides: “A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel. A person who violates this subdivision is guilty of a petty misdemeanor.” 4 Minn. Stat. §604A, subd. 2(a) [Knowing Too Much: Does your advanced tree-care training make you a 24/7 Good Samaritan?] What about the second part of the Good Samaritan law that requires people to give assistance in emergency situations? Everyone in Minnesota has an obligation to give reasonable assistance at the scene of an emergency, regardless of background or employment status. An emergency is defined as a “situation which has suddenly and unexpectedly arisen and which requires speedy action.”5 The suddenness or unexpectedness of a situation makes it an emergency. There are no Minnesota appellate court cases dealing with the applicability of the Good Samaritan law to tree emergencies. So, there is no binding legal authority on this subject. But a likely scenario for a tree emergency would be a tree that falls suddenly and injures someone. Any passerby would have an obligation to try to give assistance in that situation. The Good Samaritan law applies to present or existing emergencies, not future emergencies, according to the Minnesota Appellate Court.6 The scenario above about the tree that suddenly fell is a present or existing emergency. Trees with defects or other problems are risks that should be properly managed, but they are not existing emergencies, unless a tree’s failure is imminent. Arborists are no more expected to be able to predict emergencies than anyone else. If you come upon a genuine emergency (involving trees or otherwise), render assistance, as required by law. If you come upon a tree that could fail some time in the future but hasn’t yet failed, don’t panic. You are not legally obligated to act to protect another person from a potential danger, unless you have a special relationship with the other person.7 A “special relationship” exists between an innkeeper and a guest, a bus company and a passenger, a hospital and a patient, etc. In those situations, the person in need of protection is vulnerable or dependent. A business/customer relationship is not a special relationship.8 Although you have no legal obligation to correct every tree problem you observe, your conscience will probably prompt you to report a dangerous tree to the property owner or appropriate governmental agency. You will feel better knowing that you have done what you could to protect the public by putting the tree owner on notice of the problem. You do not have the right to enter a person’s property and cut down a hazardous limb or a tree without permission, even if your intent is to do a good deed by fixing a tree defect. Entering a person’s property without permission is trespass. Cutting down a tree without the tree owner’s permission carries a stiff penalty. A state law provides that whoever intentionally cuts down a tree without the owner’s permission can be assessed three times (“treble”) the amount of damages awarded in court.9 Bottom line: Rely on your professional training, good judgment, and common sense. You were trained to be a tree-care specialist, not a guardian angel. Disclaimer: The information included in this fact sheet is intended to be educational, not legal advice. If you have a legal problem and require legal advice, you should consult a lawyer. 5 Id., 486 N.W.2d at 9. 6 Johnson v. Thompson Motors of Wykoff, Inc., No. C1-99-666 (Minn.. Ct. App. Feb. 2, 2000) 7 Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn. 1995). 8 Erickson v. Curtis Inv. Co., 447 NW.2d 164, 168 (Minn. 1989). 9 Minn. Stat. §561.04. [Knowing Too Much: Does your advanced tree-care training make you a 24/7 Good Samaritan?] Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 In the Shade of a Tree: Analyzing the Tree-related Legal Problem By Steve Pihlaja and Lorrie Stromme Trees provide shade, purify air, enhance quality of life, and inspire poetry, but they also may inspire lawsuits. Whether the tree is yours, your neigh bor's, or your client's, it's prudent to know what sort of shadow it may cast. T he trees of our urban forests provide shelter, purify the air we breathe, increase property values, conserve energy, and enhance quality of life in our cities. Trees inspire strong emotional reactions in the people who live, work and recreate under their branches. Strong emotions coupled with competing interests often result in a trip to the lawyer's office. Sooner or later one of your clients will have a legal dilemma involving a tree. The purpose of this article is to provide you with a framework to analyze the problem. The primary legal questions involve issues of nuisance, negligence, and trespass. But the analysis starts by identifying: Whose tree is it? In general, the location of the tree trunk determines who owns the tree. A tree that stands solely on your client's property belongs to your client. Disputes arise when trees straddle a boundary line or when the branches of your client's tree encroach onto the neighbor's property. Jurisdictions differ on boundary trees. In some states, trees standing along a boundary line are the common property of the neighbors on either side of the boundary, and neither neighbor can remove the tree without the consent of the other. Th is includes the tree that starts out in one yard and grows into the boundary of the neighbor's yard. In the Shade of a Tree Page 2 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 In Minnesota, the mere presence of a tree trunk on the boundary line does not create a boundary tree or determine ownership. Instead, the court looks at the intention of the neighboring property owners. A tree is a boundary tree if it was planted jointly or treated as common property by agreement, acquiescence, or course of conduct.1 For example, adjoining owners who split the costs of pruning and maintain ing a boundary tree or hedge would probably be considered co-owners of the tree or hedge. So, when a broken limb or a tree disease becomes a problem, the co-owners share responsibility for fixing the problem. Nuisance Trees: Encroaching Branches or Roots Branches that overhang your client's property or tree roots that push up a sidewalk or clog a sewer are considered a nuisance. "Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance."2 The leading Minnesota case on nuisance trees is Holmberg v. Bergin .3 In that case, a Minneapolis homeowner planted an elm tree within 15 inches of the property line. Over the course of 26 years, the tree grew to be 30 inches in diameter and 75 feet high. The trunk grew across the boundary line, pushing the fence out of alignment. The roots extended into the neighbors' yard and caused the sidewalk to tip toward the house, resulting in a drainage problem in the neighbors' basement. The Holmberg court found that the tree was not a co-owned boundary tree but was a nuisance, because the tree roots obstructed the neighbors' free use and enjoyment of their property. The neighbors sued for monetary damages and an injunction to prune the roots or remove the tree. Experts for both sides acknowledged that corrective action to restore the grade would damage the roots and either kill the tree or make it dangerously unstable. The court ordered the tree cut down, because the alternative -- severe root pruning -- would have weakened the tree or caused the tree to die, endangering the neighbor's home if the tree blew over in a windstorm. The court disallowed money damages, because the In the Shade of a Tree Page 3 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 neighbors had failed to take advantage of earlier opportunities to exercise self-help and remove the invading roots. Using Self-Help. Property owners in every state have the right to use self -help to prune branches or roots of a neighbor's tree that encroach onto their property. Some states follow the Massachusetts Rule, where self-help is the exclusive remedy for encroaching branches or roots.4 Self-help is an alternative to going to court. The rationale is that self-help prevents the wasteful, needless use of the judicial system and vexatious lawsuits.5 It's a tradeoff: your client fixes her problem at her own expense, instead of slogging through the expense and uncertainty of the court system. Minnesota courts do not follow the Massachusetts Rule. In Minnesota , self-help is encouraged, with discretion, but it is not the exclusive remedy. Equitable remedies to abate the nuisance are available. "The law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance on his land, he must not permit it to injure his neighbor."6 When self -help is not practical or reasonable, your client can go to court for an injunction or other equitable remedies to have the nuisance abated. Your client's guidelines for self-help include: · Prune only up to the boundary line -- at your client's own expense. · Don't trespass. Get permission to enter onto the neighbor's property to do the pruning, unless the encroaching branches or roots threaten to cause imminent harm to your client's property. · Don't cut down a tree whose trunk is located on the neighbor's property, even if the branches stray onto your client's property. · Maintain, don't destroy. Don't jeopardize the health of the tree or cause foreseeable injury. For example, pruning an oak tree from April through In the Shade of a Tree Page 4 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 September could make the tree vulnerable to oak wilt, a virulent disease. Or pruning a tree's roots could destabilize the tree and cause it to topple over. · Advise your client to seek the opinion of a certified arborist, a specialist in the care of individual trees, about the tree's condition. Look in the Yellow Pages under "tree service," and look for the arborist's membership in professional organizations, such as the Minnesota Society of Arboriculture (MSA), the International Society of Arboriculture (ISA), or the National Arborist Association (NAA). The trend in tree law is toward the California Rule or "self -help nice." Minnesota courts have not expressly adopted the California Rule, but it appears to be a natural outgrowth of Holmgren v. Bergin, supra. In appropriate circumstances, a neighbor who is being injured by a nuisance may protect himself by unilaterally abating the nuisance. However, the abater must act in a reasonable manner at reasonable time, and must avoid causing foreseeable injury to the tree. A showing of malice on the part of the abater evidences a strong indication that the self -help was unreasonable.7 Leaves Happen. Another area of contention is tree debris: leaves, acorns, fallen fruit, branches, sap. There is not a Minnesota case directly on point. However, other jurisdictions have recognized that the natural growth of trees includes shade, invading roots, leaves, and overhanging boughs,8 and that liability is reasonable when there is "sensible damage,"9 such as a damaged roof, not mere debris from a healthy tree. Your client, who is sick and tired of sweeping the apple blossoms off his driveway after they have fallen from his neighbor's tree, probably has no cause of action. Going to court to have the neighbor ordered to pick up fallen debris is not practical or economical, and is probably why there is not much precedent on this issue. Fruit of the Neighbor's Tree. Neighbors may disagree as to who has the right to the apples or other fruit growing on an encroaching tree branch. The rule of thumb is that if the tree trunk stands in a neighbor's yard, all of the fruit wherever it is hanging belongs In the Shade of a Tree Page 5 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 to the neighbor.10 Picking the fruit may not be so simple. Ownership of the fruit does not give the neighbor any right to trespass onto your client's property to retrieve the fruit. Courts would probably weigh the right to keep trespassers out of your client's yard against the tree owner's right to harvest the fruit o f her tree. The orchard owner whose livelihood depends upon the harvest probably has a stronger claim than an urban gardener. The law is also unclear on the issue of fallen fruit. As a practical matter, it would not be worthwhile for a neighbor to sue your client for keeping fallen fruit, because it would have nominal value. The courts would probably hold the tree owner responsible for making advance arrangements to harvest the fruit if it had sufficient value to bother with. Your client is probably safe to keep the fallen fruit if his neighbor says nothing about it. As with most neighbor disputes, the best counsel you can give is to encourage communication and neighborliness. Negligence: Hazard Trees and Limbs The trend across the country is to hold tree owners legally responsible for damage caused by unsound or "hazard trees."11 A hazard tree is a tree with a defect plus a target, such as a sidewalk, a car, or a house in the path of an unstable or decaying tree. Minnesota cases involving negligence in tree law tend to fall into two categories: damage caused by trees or damage done to trees. Foreseeability is the common thread that runs through both types of claims. In both instances, courts will look at what should have been obvious to the tree owner about the tree's condition. Damage Your Client's Tree Causes. If a neighbor's tree is unsound and threatens your client's property, the neighbor may be liable for any damage that occurs. The test is whether the tree owner knew or should have known that damage was likely. A tree owner is not expected to be a tree expert, but she is expected to recognize obvious In the Shade of a Tree Page 6 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 symptoms of a problem, such as the unseasonal lack of leaves, a dead limb, visible decay, or a tree leaning dangerously to one side. If the potential for damage is foreseeable and if the tree owner fails to take corrective action, the courts will likely hold the owner legally responsible for damage caused to people or property. In an unpublished opinion, the Minnesota Court of Appeals found that a landowner was not liable in a personal injury case where the landowner's tree did not pose an obvious danger.12 In that case, a tree trimmer was injured when a decaying branch broke. Liability was not imposed, because the branch appeared to be sturdy and showed no signs of decay. In another case, a landowner was found to owe no duty to protect a pedestrian from a low-hanging branch that was clearly visible.13 What's Entropy Got to Do With It? A Georgia case that reaches the same conclusion about foreseeable d anger is worth quoting. Taking judicial notice of the Second Law of Thermodynamics, the court said, This law tells us that all in the universe, trees, human beings, plants, animals, buildings, and all else are headed downward from complexity to simplicity toward decay, deterioration, decadence, and death. Everything heads towards decay; for example, a tree decaying, which is an increase of entropy, or uselessness. We are specifically limiting liability to patent, visible decay, and not the normal, usual, la tent, micro -nonvisible, accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot, as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high w inds might combine with visible rot and cause damage.14 Damage Done To Trees. In a leading Minnesota case on negligent damage to trees arose when a church hired a road contractor to expand a parking area. The contractor piled soil over the roots of a grove of oak trees, smothering the trees.15 In finding In the Shade of a Tree Page 7 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 negligence, the court held that the contractor knew or should have known the consequences of mounding soil over tree roots. This case also set a new standard for awarding damages in negligence cases. Damages. In deciding how to compensate a property owner for damaged trees, Minnesota courts have distinguished between ornamental trees and standing timber or ill-formed trees. If trees that are ill-formed or serve merely to prevent erosion or curtail noise are injured, the courts have based damages on diminution in land value, i.e., the difference in the land value before the injury and afterward. If trees are primarily ornamental or shade trees, the court has said that the jury may consider replacement cost, to the extent that the cost is reasonable and practical, as an alternative measure of damages. "Reasonable and practical" replacement cost has been defined as: The cost to replace the number, size, and species of trees destroyed to the extent that: 1) replacement serves to substantially restore the character and quality of the property appropriate for the owner's enjoyment and intended use and 2) the cost of replacement is not greatly disproportionate to the resulting restoration of the owner's enjoyment and intended use of the property.16 Act of God. A frequently heard excuse is that damage caused by a fallen tree was an act of God. Not every tree that falls over in a strong wind and causes damage is the result of an act of God.17 To qualify as an act of God in negligence cases, all of the following elements are needed: 1) the accident must have happened from a force of nature that was both unexpected and unforeseeable; 2) that force must have been the sole cause of the accident; and 3) the accident could not have been prevented by using reasonable care.18 A bolt of lightning is an act of God, if it is the sole cause of an injury. However, a person is liable if his own prior negligence combined with the act of God to cause the injury. Trespass and Wrongful Tre e Removal In the Shade of a Tree Page 8 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 Trespass to trees is a tort recognized separate from trespass to land and carries a heavy penalty. Cutting a tree on someone else's land without her permission is a trespass to the tree.19 The penalty for intentional, wrongful tree removal is treble damages. In Minnesota, a landowner whose trees were bulldozed and buried on his land without his permission was awarded both treble damages for the trespass to his trees and punitive damages for the trespass to his land.20 An example of involuntary or casual trespass to the tree is illustrated in a Minnesota court case where a driver had a heart attack and drove into a grove of Colorado Spruce trees.21 Although the tree damage or "trespass" was not malicious, it occurred without the permission of the t rees' owner and the court awarded him single damages. There are also penalties for criminal trespass and criminal damage to property.22 Utility Company Pruning. A common urban sight is the row of trees under a power line cut in a deep v-shape. You may have a client who wants to sue a utility company for its tree-trimming techniques or its removal of a tree. Your case assessment should weigh aesthetics against the utility company's duty to meet public demand to prevent power failures caused by fallen tree limbs during storms. Utility companies have easements across property in order to provide electricity. Courts recognize the right of utility companies to trim or remove trees within their easement, as long as the work is reasonable and necessary to construct, use, operate, or maintain power lines in the easement area.23 However, the utility company has a duty to remove power line obstructions in a way that causes the least damage to the property the power lines cross. In a recent Minnesota case,24 the Supreme Court confirmed that a property owner has an interest in the trees on city land in front of her property and standing to sue the utility company that removed a boulevard tree. However, the Court also found that this right is subordinate to a utility's right to trim or remove the trees to keep power lines clear. The Court of Appeals decision that preceded the Supreme Court case should be mandatory In the Shade of a Tree Page 9 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 reading for any "budding" tree lawyer, if only to brush up on clever tree puns, such as: "stumped by the dismissal," "out on such a limb," "sapping the meaning," "fell on wooden ears," and "rooted in the common law." In conclusion, even if you don't think of yourself as a tree-hugger, you'll be acting in your client's best interests and protecting our urban trees by giving the following advice: "Work it out with your neighbor, or chat before you chop." Notes 1 Holmberg v. Bergin, 1 72 N.W.2d 739 (Minn. 1969). 2 Minn. Stat.¤561.01 3 Holmberg v. Bergin, supra. 4 Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931) 5 Richmond v. General Engineering Enterprises Co., 454 So. 2d 16 (Fla App D3, 1984). 6 Holmberg v. Bergin, 172 N.W.2d at 744. 7 Booska v. Patel, 24 Cal. App. 4th 1787, 30 Cal. Rptr. 2d 241 (1994). 8 Michalson v. Nutting, supra, 175 N.E. at 490. 9Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939) 10 See, e.g., Skinner v. Wilder, 38 Vt. 115 (1865). 11 "Hazard tree" is a term of art used by arborists and tree scientists. 12 Allison v. Olson and Mauer, filed December 12, 2000, C0 -00-942 (unpublished). http://www.lawlibrary.state.mn.us/archive/ctapun/0012/942.htm 13 Sperr by Sperr v. Ramsey County, 429 N.W.2d 317 (Minn. App. 1988). 14 Cornett v. Agee, 143 Ga. App. 55, 237 S.E.2nd 522, 524 (1977). 15 Rector v. McCrossan, 235 N.W.2d 609 (1975) 16 Guide for Plant Appraisal, 8th Ed. 1992. 17 Swanson v. LaFontaine, 238 Minn. 460, 57 N.W.2d 262 (1953) 18 VandenBroucke v. Lyon County, 301 Minn. 300, 222 N.W.2d 792 (1974). 19 Minn. Stat.¤561.04 20 Muelstedt v. City of Lino Lakes, 473 N.W.2nd 892 (Minn. App. 1991; cf Johnson v. Jensen, 446 N.W.2d 664 (Minn. 1989). 21 Pluntz v. Farmington Ford-Mercury, Inc., 470 N.W.2d 709 (Minn. App. 1991). 22 See,e.g., Minn.Stat.¤609.605, subd. 1(b)(5) and Minn. Stat.¤609.595. 23 Minn. Stat.¤222.37. 24 Miller-Lagro v. Northern States Power Company (1998) , 582 N.W.2d 550 (Minn. 1998), citing Minn. Stat. ¤561.04. In the Shade of a Tree Page 10 Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 Steve Pihlaja is a solo practitioner in Minneapolis, practicing in the areas of criminal defense and civil litigation. He is a 1979 graduate of William Mitchell College of Law. Lorrie Stromme is a lawyer, tree care advisor/master gardener, president of the Minnesota Shade Tree Advisory Committee, and a Hennepin County planner. She is a 1981 graduate of William Mitchell College of Law.