Cities can Enact View Protection Ordinances; but Few Do

Joyce Kilmer might have thought that no sight was lovelier than that of the tall trees in her yard, but there are those who would prefer a different view.

Certainly, throughout California, there have been more than a few disputes between tree owners and those whose views have been blocked by trees.  Among the latter group there are many who feel that “there ought to be a law” that would protect their views from being blocked by trees, hedges, and any other things that nature manages to grow to view-blocking heights.

In general, there is no such law.  In the late 19th century the California Supreme Court ruled (Kennedy v. Burnap) that there was no inherent property right to a view or even the passage of natural light.  An easement for such things could be granted, but is not implied.  For example, a deed restriction could prevent an owner of one lot from erecting a structure so high that it would block the view of another particular lot.  But, without such a restriction, or some other agreement, there is no view protection.

It is not uncommon for CC&Rs in developments with view lots to have restrictions on other lots so that views will not be impaired.  Such restrictions have been upheld provided that they are reasonable.

Very few California cities have view preservation ordinances.  One California appellate case (Echevarrieta v. City of Rancho Palos Verdes, 2nd District Court of Appeal) held that such laws can be constitutionally valid.  In that case, Echevarrieta’s Palos Verdes residence, which he had owned since 1964, was situated below that of Norbert Keilbach.  Keilbach had purchased his home in 1966.  Over the years, trees on Echevarrieta’s property grew to a height such that they blocked Keilbach’s ocean view.

Finally, in the 1990s, Keilbach sought to invoke Palos Verdes’ 1989 ordinance that limits tree heights in order that views will be protected.  Following public hearings held by the View Restoration Committee, the city ordered that the offending trees be trimmed.  Echevarrieta refused and filed a lawsuit against the city.

Echevarrieta argued that the ordinance exceeded the city’s traditional “police power to protect safety, health, and welfare”.  He argued that the trimming of his trees would in effect be an unconstitutional taking of his property without just compensation.  A Los Angeles County Superior Court upheld the city ordinance, and Echevarrieta appealed the decision.  But the Second District Court of Appeal allowed the decision of the lower court to stand.

The Court of Appeal reaffirmed the position that the power of public entities to protect the general welfare is broad and that it includes the power to protect aesthetic values.  The appellate court also disagreed with Echevarrieta’s claim that the city’s action constituted a taking.  The usual elements of a taking, such as physical dispossession of the owner, or denial of all economic benefits of the property, were lacking in this case.

In this situation, the property owner did not have to bear the economic burden of the tree-trimming costs, because the ordinance required that the applicant (the neighbor) must pay the expenses.

While it’s up to nature to decide where and how tall a tree will grow… a city can require that they be trimmed.