Hazardous tree

by Madelyn Posey
(Clarkston. GA)

Visitor Question: My neighbor has a hazardous water oak tree that is over 100 years old that is 15 feet from my small house. I paid for two separate certified arborist assessments, which came back as the tree being a Severe Risk to my property and life should it fall on my house. (It is leaning toward my house).

There is a city "nuisance" ordinance for property owners who neglect dangerous trees on their property that could cause "hurt" to persons on the property or to neighbors. The ordinance states that the city will fine the neighbor (for a certain number of days), and if the nuisance is still there they will come remove the nuisance and charge the property owner.

My attorney filed a complaint to the City and the council decided to say that it's a "private" matter and refused to take action.

Editors Reply: Madelyn, you should not have to put up with this situation. Incidentally, your question was cut off in mid-sentence, so possibly we did not have all of the information you sent. What we could understand is printed above.

We have a few ideas for you. First, we want to make sure you have actually discussed this situation with your neighbor. That is often the most successful course of action if the neighbor will be civil. You can point out that you already have used an attorney regarding this matter, and that you will not hesitate to sue if there is any damage to your property as a result of this hazardous tree. Possibly your attorney might arrange a face to face conversation at his or her office.

If you have not offered to split the cost of removing the tree with your neighbor, you might consider that. The cost could be less than additional legal work to try to solve the problem, and as an added bonus, it would address the issue faster than any kind of legal action.

But providing you have taken that obvious step, you may want to talk with your attorney about suing the city, asking for an injunction requiring the city to enforce its own ordinance. There might be a loophole in your situation, though, since you said the council was the one making the decision not to enforce the law. It is somewhat unusual for a council to make such a decision; no doubt the city attorney would advise against it. Usually city councils do not make code enforcement decisions, although occasionally the ordinance allows for appeals of staff decisions. This could have happened in your case.

Your city also might be motivated by being on the losing side in a local court when they tried to enforce the nuisance ordinance. Since typically nuisance ordinances are free-standing and not part of the zoning law, they do not have as much of a history of judicial support as zoning does. We have noticed a general decline in the popularity of nuisance ordinances and an increase in the rate at which they are ruled by local courts as unconstitutionally vague.

However, in your case the ordinance seems quite specific. We really would advise a longer discussion with your attorney about what recourse you might have. Waiting for this tree to fall on your house does not seem like a good option, does it?

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