Retired baseball All Star John Olerud has persuaded the Clyde Hill, Washington Board of Adjustment to force his neighbors to chop down two valuable trees on their property so that he will have a better view of the Seattle skyline:
Nine years after he won his third Gold Glove as a Seattle Mariners first baseman, John Olerud has won a victory in a different venue.
The Clyde Hill Board of Adjustment ruled Wednesday night that Olerud’s neighbor to the west must remove two trees because they unreasonably obstruct Olerud’s view of Lake Washington and the Seattle skyline.
The board’s 3-2 order is the first time the city has told a resident to cut down a tree under a 1991 “view obstruction and tree removal” ordinance…
An appraiser hired by John and Kelly Olerud said their $4 million home would be worth $255,000 more if the rare Chinese pine and the Colorado spruce across the street were cut down and replaced with smaller plants. The Chinese pine’s value is estimated at more than $18,000.
Removing the trees would widen the west-facing view from his family room by 65 percent, Olerud told the Board of Adjustment, giving his house the same amazing view of Seattle’s skyline that’s visible from nearby Northeast 20th Street….
“We love the trees, they are valuable and we don’t want to remove any of them,” Baker said. He said the Oleruds “have a fabulous property and, no matter how valuable it is, the ordinance doesn’t promise them an unobstructed view. It doesn’t entitle them to more than they paid for [when they bought their house, at which time the Bakers' trees were already there]….”
Removing the trees wouldn’t unreasonably decrease the Bakers’ enjoyment of their property, the board said. The view ordinance says an owner’s enjoyment of a tree must be determined “by an objective evaluation,” and “the personal attachment of a party to particular trees or landscaping shall not be compelling…..”
Under the board’s order, the Oleruds must pay the cost of removing the trees and replacing them with smaller trees or shrubs.
Some readers have asked me whether the Board’s order forcing the Bakers to destroy their trees is a taking requiring compensation under the Fifth Amendment. Under current Supreme Court precedent, probably not. Since the order doesn’t create a “physical invasion” of the property or even come close to destroying 100% of its economic value, it would likely be analyzed under the Penn Central test, which is generally very favorable to the government. In my view, current precedent is far too permissive. When government orders the destruction of valuable private property, it should be considered a taking unless the property is creating a public nuisance or some other kind of clear harm, or the property was illegal contraband at the time it was acquired. Wartime military necessity could also be an exception. But I’m not going to defend that view in detail here.
The Constitution aside, laws like the Clyde City ordinance are ill-conceived. One of the main purposes of private property is to allow owners to do as they wish with their land even if neighbors would prefer a different use. In some cases, we might want to restrict land uses if they create a large-scale harm to the neighborhood that individual neighbors cannot address on their own, due to collective action problems. But this, pretty obviously, is not such a case.
The ordinance also undermines economic efficiency. While the Oleruds value having an unobstructed view of the skyline, the Bakers just as clearly value the trees. If the Oleruds are not willing to offer the Bakers a large enough payment to persuade them to cut down the trees voluntarily, that’s a strong sign that the Bakers value the trees more than the Oleruds value the view. While the ordinance states that authorities must ignore “the personal attachment” that owners feel for their trees, that personal attachment is a part of the trees’ value just as much any “objective” assessment of their sale value on the market.
This is not a case where effective bargaining between the two sides is prevented by high transaction costs. The Oleruds and the Bakers are neighbors and can easily negotiate with each other. The Oleruds did in fact negotiate with the Bakers, but could not reach agreement. They did not offer enough money to persuade the Bakers to give up their trees. That suggests that leaving the trees alone is not only more respectful of property rights, but also promotes economic efficiency. Societal wealth is maximized when property rights are held by those who value them the most. In most cases, the best way to ensure that is to let property owners decide for themselves whether they want to sell a particular right. The Bakers are in a good position to determine whether they value the trees more than the Oleruds are willing to pay, or not. A government agency, by contrast, has no good way of determining how much subjective value the Bakers really attach to the trees, and therefore no way of knowing whether they value the right in question more than the Oleruds do.
UPDATE: The Seattle Times article linked above says that this is the first time the ordinance in question was actually used to force a homeowner to cut down their trees. It’s possible this means that neighbors usually reach agreement voluntarily, thereby ensuring that the ordinance has little effect. But it’s also possible that those who want to force their neighbors to remove trees are able to use the threat of the ordinance to get tree owners to give up their rights at prices far below their true value.