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HomeMy WebLinkAbout05 CLAIM IRWIN GROSS 10-02-95LAW OFFICES OF MEMORANDUM NO. ~ ,10-2-95 TO: Honorable Mayor and Members of the City Council City of Tustin FROM: City Attorney DATE: RE: September 25, 1.995 Claim of Irwin Gross RECOMMENDATION: After investigation and review, it is recommended that the City Council deny the claim and direct the City Clerk to provide appropriate notice to the claimant and his attorney, if any. DISCUSSION: The claimant alleges damages due to City trimming of trees' that were overhanging a City alley. The City Council has previously received a 60 page memorandum from Mr. Gross complaining about problems in the alley, but at the time of this memorandum, the tree trimming had not yet occurred. On January 31, 1995, trees and bushes from Mr. Gross' property were overhanging a public right-of-way,, causing interference with large vehicles, i.e. trash trucks, going through the alley; and were also partially blocking a stop sign at the end of the alley. The trees were trimmed pursuant to Sections 7304 and 7305 of the Municipal Code. Such trimming reduces the potential for City liability in the event of accident or damage due to the overhanging limbs or branches. The claimant has been unable to substantiate any actual damages caused by this incident. He has not replaced any of the trees in question. His principal complaint appears to be that he has lost privacy due to the trimming and that more sunlight comes into his home as a result. However, the home lacks central air conditioning, so there is no increase in cooling bills attributable to the increased sunlight. The claimant also alleges emotional distress, but has Yet to seek any professional help in dealing with his trauma. Based on all of the above, we conclude that this is a highly questionable case of liability against the City of Tustin. Accordingly, we recommend denial of the claim. LOIS E. JEFFR~ '~ 1" j~ Enclosure cc: William A. Huston, City Manager City of Tustin ~ ~ .IM AGAINST THE CITY OF , fin (For Damages to Persons or Personal Property) The law provides generally that a claim must be filed with the City Clerk the City of'Tustin within 6 months after the incident or event occurred. sure your claim is against-the City' of Tustin, not another public entity. Where space is insufficient, please use additional paper and identify information by paragraph number. Completed claims must be mailed or delivered to the City Clerk, City of Tustin, 300 Centennial Way, Tustin, California 92680 WHEN COMPLETING THIS FORM, PLEASE TYPE OR USE BLACK INK ~To TH~ HONORABLF. MAYOR AND CITY..COUNCIL, City of Tustin, Calif°~nia: The undersigned respectfully submits the following claim and information relative to damage to person and/or property: . -. 1. a. NA/~E OF CLAIMANT: ~u3,~ b. ADDRESS OF CLAIMANT: c. CITY/ZIP CODE: ~ ) e. DATE OF BIRTH: /;- f. SOCIAL SECURITY NO: g. DRIVERS LICENSE NO: 2. Name, telephone and post office address to which claimant desires notice~ to be sent (if other than above): 3. This claim is submitted against:~. a. The City of Tustin only. b. The following employee(s) of the City of Tustin only: c. / The City of Tustin and the following employee(s) of the City of Tustin only: 4. Occurrence or event from which the claim arises: a. DATE: ~u~ ~/~ /qfg' c. P~CE (Exact. and specific location): ~ug=~=~~ ~u~/~& ~ ~ ~5 d. HOW and und'er what circumstances did damage or inju~ occur? Specify' ~e particular occurrence, event, act or omission you claim caused ~.e inju~ or damage (Use additional paper if necessa~): e. WHAT particu?' - ~ction by the city, or .;~ employees, caused the alleged dama~ ~ injury? ~ 5. Give a description of the injury, property damage or loss so far known at the time-of this claim. If there were no injuries, state "no injuries". 6. Give the name(s) of the City employee(s) causing the damage or injurY: 7. Name and address of any other person injured: /~M~4 x~. 8. Name and address of the owner or any damaged property: 9. Damages claimed: a. Amount claimed as of the date: ~% ~~%~ 8 ~ ~/~, ~mo ~ b. Estimated amount of future costs: ~ ~3~ c. Total amount claimed: ,~ ~m~$~ ~ ~/~, ~ ~%~ d. Attach basis for computation of amounts claimed (include-copies all bills, invoices, .estimates, etc. 10. Names and addresses of all witnesses, hospitals, doctors, etc. WARNING: IT IS A CRIMINAL OFFENSE TO FILE A FALSE CLAIM!! (Penal Code Section 72; Insurance Code Section 556.0) "I have read the matters and statements made in the above claim and I know the same to be true of my oWn knowledge, except as to those matters stated to he upon'information or belief and ~s to such matters I believe the same to be true. I certify under penalty or perjury that the foregoing is TRUE AND CORRECT. Executed this ~ day of .., 19 ~/'5"., at Tustin, California. CLAIMANT' S SIGNATURE Bi' CLFORM Revised 4/29/91 CLAIM AGAINST THE CITY OF TUSTIN (for Damages to Persons or Personal Property) Irwin G. Gross ATTACHMENT 3c. The parties intended to be named in this claim include, but 'may not be limited to, the .Field Services crew members Which performed the trimming of vegetation herein alleged; and the street sweeper driver who is alleged to have initiated the complaint against said vegetation. 4d. The trimming activity herein alleged was performed in my absence, without notice of any kind, and without my knowledge or consent, while I was awaiting discussion, as promised by Tustin City Council, of circumstances involving the trees herein discussed. I am informed and believe that the trimming was initiated upon complaint of the driver of a City street sweeping 'vehicle. I am further informed and believe that the trimming activity was authorized by the Tustin Police Department without the benefit of on-site inspection. 4e. The trimming herein alleged was performed without notice, to a degree beyond any practical necessity, without due care or proper regard for property lines. ~ Several trees growing behind the south boundary of my property and vines covering the chain link fence that lies on that boundary with a public alley, were trimmed to a degree that has left my home and property unreasonably exposed to natural and neighborhood elements. RE VINES: Most of the live greenery was removed from the fence, leaving an unsightly condition persisting for many months and still continues, to a degree (see photo #1). The loss of those vines has also deprived us, this year, of the annual blooms which have been enjoyed by much of the neighborhood. Removal of the supportive structure of the fig vine (to the rear of the property) resulted in further significant vine loss BEHIND the fence line during subsequent winter storms. RE TREES: Numerous branches and limbs were removed to a height approximately ten feet above the top of the fence. The remainder of many cut limbs and branches were left in broken condition which is. unsightly and leaves the trees more vulnerable to disease (see photo #2). Several large branches BEHIND the property line appear to have been injured during the trimming and have since died. I. Gross/Claim Page 1 of 3 5.(cont'd) Low branches from the foremost tree (bottlebrush), Growin§ ~t~rouGh the chain link, had been tied back to the fence (by me) with heavy wire so. as to provide privacy without excessive extension of the branches into the alley. These branches were severely cut back and the wires cut. Branches BEHIND the fence line were cut and removed. Limbs removed from near the fence line bore branches that extended back over my property. It does not appear possible that the removal of many branches and limbs near the fence line 'c0uld have been accomplished without the extension of cutting tools over the property line: there are also chain saw knicks on the top of the fence. I BELIEVE THESE ACTS TO CONSTITUTE TRESPASS. RESULTANT EFFECTS OF TRIMMING: The trimming of my'trees and vines has substantially reduced the privacy, shade, and other protective benefits to my home and property, in General (see photos #3, ~4, #5). The thinning of the vines on the fence, in particular, has subjected us to increased detriment, including but not limited to, increased noise, fumes and other airborne pollution Generated by alley traffic. Excessive trimming has substantially reduced the vegetation screen on which we have depended to protect our view of 'the adjacent commercial property, subjectinG us to unsightly, unkempt, unrestful, and irritating conditions on a 24-hour basis. We are also, now, increasingly subjected to the view of a facility which has been the source of much undo stress and aggravation for many years. BREACH OF PROMISE: On January 3, 1995, I addressed the Tustin City Council in regard to a letter of complaint, dated December 14, 1994, in which was discussed in explicit detail, among other matters, the necessity of preserving my trees which overhang the public alley on the south side of my property. I was informed by Council that my letter and the concerns addressed therein had been referred back to City Staff for their evaluation. A promise was made by~ then-mayor Thomas R. Saltarelli assuring me that City Staff would "work with me" on those matters, strongly implying that there would be discussion between myself and City personnel. I was further assured that I was free to again approach Council for redress in the event of failure to reach satisfactory resolutions to the various problems, including, again, the protection of my trees. A similar promise was made by Ms. Christine ShinGleton, Assistant City Manager, in a brief encounter following the Council meetinG. NO PROMISED DISCUSSION OF MY TREES OCCURRED PRIOR TO THE TRIMMING INCIDENT. I. Gross/Claim Page 2 of 3 5. (cont'd) In making such a promise in exchange for my forbearance, the Cityof Tustin, in effect, incurred a contractual~dutyto-inform me of its intention to take action against the very property it knew I was seeking to protect. LACK OF DUE PROCESS' Inasmuch as the functional protective~ benefits of the removed· vegetaton, if not the material property, itself, were wholly my property, the City of Tustin had the duty to notify me of its intention to deprive me 9f said property. By not notifying me, the City had denied me my constitutional right of due process and the opportunity to defend my property, UNLAWFUL REMOVAL OF SHELTER AND PROTECTION: It is my contention, further, that California Civil Code offers protection of overhanging vegetation when such vegetation is necessary for the shelter and protection of the property from which it originates. · I have discussed, with the City, the protective necessity of my 'trees on several occasions prior to the unnoticed trimming by Field Services. There were a number of relatively recent, prior, on-site meetings with City personnel, including members of the Police Department, in which my trees were discussed, and I was given no reason to believe that the trees intruded upon the alley to an intolerabledegree. Never have the vines on my fence been an issue on the part of the City. THEREFORE, NOT ONLY HAS THE CITY OF TUSTIN CAUSED INJURY BY FAILING TO PROVIDE NOTICE, BUT MY NEED FOR CONCERN WAS CONTRAINDICATED BY THE CITY'S' PREVIOUS BEHAVIOR. ~ OTHER INJURIES: Anticipated increase in cooling costs and/or levels of discomfort in and around home. Sunlight now allowed to enter side living room windows, if opened, will leave carpet and upholstery subject to fading. Original incident was highly distressing upon discovery and continues to be distressing insofar as aftereffects are encountered on a 24-hour basis. There is also a continuing apprehension that a Field Services crew will perform additional trimming, without warning, while we are away from home. The enumeration of the above injuries is not to be construed as precluding other injuries from this claim, as they may be discovered. I. Gross/Claim Page 3 of 3