Judge takes whack at tree spat

Noaki Schwartz

CORONA DEL MAR -- An escalating dispute between neighbors protecting

their property values in the terraced Corona Highlands area has resulted

in a precedent-setting judgment requiring a local woman to trim the trees

surrounding her home.

“The judge has protected ocean view rights. He’s the first judge to do

so,” said lawyer Dave McPherson of the law firm Watt, Hoffer and

Fitzgerald, of the case against Corona Highlands resident Marcella King.

“Our hope is that we can avoid these lawsuits over heights.”

The dispute began with Pierluigi Bonvicini, who bought a house with an

ocean view that eventually disappeared behind a mass of ficus trees

sprouting from the home of King, his neighbor. The first time Bonvicini

met King was when he approached her about the trees.

She agreed to cut them if he paid 50% of the cost, which was $600.

However, she cut only one foot off one tree, and within a year the blue

ocean again disappeared behind the branches.

“We tried to resolve it by sending letters and meetings, but

unfortunately we had to initiate a lawsuit,” he said.

King refused to dramatically trim her trees, arguing that she was keeping

within the community’s height restrictions. But while the trees were at

the acceptable height of 16 feet -- if measured from the level of her

home -- the terraced hillside added another four feet to the trees,

McPherson said.

“The use restriction says that no tree shall block or interfere with the

ocean view,” McPherson said. “No tree at full height should grow 16 feet,

but these trees were 20 feet.”

And so, along with neighbor Peter Ochs, Bonvicini filed a lawsuit in 1996

that didn’t go to court until last December. While they didn’t get the

damages they sought, the judge awarded Bonvicini and Ochs an injunction,

saying King must maintain her trees at 16 feet.

This set a precedent for residents in the community who have struggled

with enforcing height restrictions on trees and buildings since Corona

Highlands was developed in the late 1940s, said McPherson.

Part of the problem are the guidelines outlining these restrictions,

known as the Codes, Covenants and Restrictions or CC&Rs.; They are

difficult to interpret and as a result, there have been a number of

similar lawsuits filed over the years.

“They’re ambiguous and old. There’s even a race restriction in there that

residents can’t sell their homes to people who aren’t of the white

persuasion,” said King’s lawyer, Randall Waier, who called the

restrictions “archaic.”

Despite a nearly three-year legal struggle, the battle isn’t over.

Although he won the lawsuit, Bonvicini said he still can’t see Catalina

from his home because his neighbor hasn’t trimmed her trees.

If King doesn’t remedy the situation soon, McPherson said he would have

to get the court to enforce the judgment by the end of the month.

“I hope we don’t have to [go to court again],” said Bonvicini. “At least

now there’s a guideline everyone can relate to.”

As for King, she is gearing up for an even bigger legal war, which will

unfold next week when she files a suit against Bonvicini and Ochs. She

claims the two tried to prevent her from selling her 1,200-square-foot

home to a prospective buyer who wanted to add on to the house. They

threatened the buyer with legal action if he built on to the home, Waier

said, adding that the issue with the trees was simply a legal smoke

screen.

However, McPherson argues that it was the homeowners’ association

guidelines and not his client’s that prevented the sale. Two years ago,

the association created stricter building guidelines and as a result, the

architectural committee began rejecting plans for homes that would block

ocean or golf course views from any surrounding homeowner.

This inability to add on to the house has caused King’s property value to

fall significantly, said Waier.

“Nobody wants to buy my house,” said King. “[Ignoring the CC&Rs;] is like

saying ‘oh my goodness’ the Bible is wrong.”